Effective October 6, 2020, Pennsylvania’s Construction Industry Employee Verification Act will require the use of the E-Verify system for all construction industry employers.
The Act defines the construction industry as those who engage in the erection, reconstruction, demolition, alteration, modification, custom fabrication, building, assembling, site preparation and repair work or maintenance work done on real property or premises under a contract, including work for a public body or paid for from public funds. The Act will apply to construction industry employers with as few as a single employee, and will apply to construction staffing agencies.
The Act will require these employers to use E-Verify to double check the legal work status of new employees. E-Verify is, as its name suggests, a web-based program administered by the federal government that allows employers to electronically verify an employee’s work-authorization.
Currently, all U.S. employers are required to verify the employment-eligibility of new hires by completing a Form I-9. The Act takes that requirement one step further by requiring the construction industry employer to match the information from the employee’s Form I-9 with that on the E-Verify system.
Once verified, the employer is required to maintain a record of such verification for the duration of the employee’s employment, or three years, whichever is longer.
The Pennsylvania Department of Labor & Industry will be tasked with enforcement of the Act and will be empowered to enter and inspect a place of business to examine records. The Department will also be empowered to copy records as necessary, require a written statement of the employer’s verification process, and “interrogate persons” to determine the employer’s compliance with the Act.
If the Department determines that an employee is not authorized to work in the United States, which it will verify with the federal government, then it will first issue a warning letter detailing the violation and informing the employer of the provisions of the Act. The employer will then have 10 business days to demonstrate that it has terminated the unauthorized employee’s employment. Employers will be entitled to administratively appeal the issuance of a warning letter. Failing to terminate the unauthorized employee, or a second violation, will result in the matter being referred to the Attorney General’s office, which will then file an action against the employer in the county in which the employer is located.
Penalties under the Act also include placing the employer on a “probationary period” during which the employer must file quarterly reports with the Department for each new employee hired, as well as face suspension of business licenses.
Notably, the Act contains a robust anti-retaliation/anti-discrimination provision. It prohibits a construction industry employer from discharging, threatening, or otherwise retaliating or discriminating against an employee because the employee participated in an investigation, hearing, or other inquiry under the Act, or made reports or complaints regarding violations of the Act to the employer or a governmental authority.
Employers in the construction industry should also be aware that employees who wish to file an action under this section have a three- year window in which they may do so. Perhaps more importantly, the Act permits an employee seeking redress to go directly to the court of common pleas, meaning there is no administrative exhaustion requirement before a lawsuit is filed. Remedies available to the prevailing employee are also substantial, and include reinstatement, restitution equal to three times the amount of the employee’s wages and fringe benefits from the date of retaliation or discrimination, attorney fees and costs, and any other relief the court deems appropriate.
If you have any questions regarding the requirements of the Act or compliance, please contact any member of the McNees Labor and Employment Group.