By Ethan R. O’Shea, Esq.

Last month, a new Pennsylvania law was passed that will require all construction industry employers to verify an employee’s work-authorization status by use of the E-Verify system.  E-Verify is an internet based federal data base run by the Department of Homeland Security and the Social Security Administration that allows employers to confirm the eligibility of their employees to work in the United States.  E-Verify employers verify the identity and employment eligibility of newly hired employees by electronically matching information provided by employees on the I-9 form, Employment Eligibility Verification, against the records available to DHS and the SSA. Many employers have been using this voluntary program for several years, and certain employers contracting with the Federal government are required to use E-Verify.  Now, under Pennsylvania’s Construction Industry Employee Verification Act (Act), Pennsylvania construction industry employers will also be required to use E-Verify effective October 6, 2020 or face mandatory penalties under the Act.

The Act prohibits a construction industry employer from knowingly employing an unauthorized employee, and Pennsylvania’s Department of Labor and Industry (L&I) is tasked with investigating complaints that an employer has violated the Act.  In conducting its investigation, L&I will verify the work authorization of the suspect employee with the Federal government and if a determination is made that the employee is in fact unauthorized to work, there will be consequences to the employer.  For a first violation, L&I will issue a warning letter advising of the unauthorized hire, following which the employer must verify in writing to L&I that it has terminated the employment of the unauthorized employee.  Failure to do so will be considered a second violation of the Act.

Whenever there is a second or subsequent violation of the Act, L&I must refer the case to the Pennsylvania Attorney General’s Office for enforcement.  The Attorney General will thereafter bring a civil action against the employer, and if the Federal government has already determined that the suspect employee is ineligible to work, that will create a rebuttable presumption of that employee’s ineligible status. However, if the employer shows proof that it has verified the employment authorization of the employee through the E-Verify program, that will create a rebuttable presumption that the employer did not knowingly employ an unauthorized employee in violation of the Act.

If a court does in fact find an employer has violated the Act by knowingly employing an unauthorized employee, the court must impose certain penalties including a three year probationary period during which the employer must file quarterly reports with L&I for each new employee hired. Also, if the employer does not provide written verification that it has terminated the unauthorized employee, its business license will be suspended until the employer complies. For a second violation of the Act, the court may order that the business license be suspended for a period of not more than 30 days, and for a subsequent violation of the Act or a violation that occurs during the three year probationary period, the court shall order suspension of the business license for at least one year.

The Act provides protection for employers who rely in good faith on the E-Verify program against civil actions by persons who are not hired, or who are discharged from employment if incorrect information has been provided to the employer. Further, contractors will not be responsible for violations of subcontractors if the contractor has 1) required compliance with the Act in its subcontract, and 2) obtained written verification from the subcontractor that the subcontractor is aware of the provisions of the Act and is responsible for compliance.  Lastly, the Act contains protection for persons who file complaints with L&I about violations of the Act, and impose significant penalties against employers for retaliating against any such complainant.

Anyone with any questions with regard to the Construction Industry Employee Verification Act may contact Ethan O’Shea, Chair of Hamburg, Rubin, Mullin, Maxwell & Lupin’s Employment Practice Group.

To learn more about E-Verify and/or to enroll in E-Verify, visit the DHS E-Verify website at www.e-verify.gov.