PA Contractors Must Use E-Verify To Check Employee Eligibility

by Ballard Spahr LLP
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[authors: Patrick J. Harvey, Rebecca L. Massimini]

The recently signed Public Works Employment Verification Act requires contractors and subcontractors on public works projects in Pennsylvania to verify the employment eligibility of newly hired workers using the Department of Homeland Security’s E-Verify program.

Effective January 1, 2013, the act requires that construction contractors and subcontractors on taxpayer-funded public works projects provide the public agency that awarded the contract with a form certifying that they have verified the employment eligibility of each new employee using the E-Verify program. The certification form must be provided to the agency prior to beginning work on the project. The contractors and subcontractors must also affirm their enrollment in the E-Verify program and acknowledge their responsibilities under the act.

“Public work” is defined in the Pennsylvania Prevailing Wage Act of 1961 as: “Construction, reconstruction, demolition, alteration and/or repair work other than maintenance work, done under contract and paid for in whole or in part out of the funds of a public body where the estimated cost of the total project is in excess of twenty-five thousand dollars ($25,000), but shall not include work performed under a rehabilitation or manpower training program.”

The act will be enforced by the state Department of General Services, with violations resulting in progressive penalties. Contractors and subcontractors will receive a warning letter for a first violation, debarment from public work for 30 days for a second violation, and debarment for six to 12 months for subsequent violations. A court may order a contractor’s or subcontractor’s debarment for a period of three years if the court finds that a violation was willful.

Failure to provide the verification form required under the law is punishable by a penalty of $250 to $1,000 for each violation. A contractor or subcontractor that relies in good faith on the E-Verify program to verify a worker’s eligibility for employment is immune from the sanctions provided for under the act.

The law also protects whistleblowers by prohibiting retaliation or discrimination by a contractor or subcontractor against an employee who reports a violation of the act or participates in a government investigation of an alleged violation. Workers who suffer retaliation or discrimination can sue for reinstatement and restitution.

Ballard Spahr attorneys regularly assist employers in complying with federal and state regulations governing the hiring process. If you have questions on the Public Works Employment Verification Act, please contact Patrick J. Harvey at 215.864.8240 or harveyp@ballardspahr.com, Rebecca L. Massimini at 215.864.8223 or massiminir@ballardspahr.com, or the member of the Labor and Employment Group with whom you work.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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