[authors: Eric S. Bord and Eleanor Pelta]
Participation in federal employment eligibility program required for public works contractors and subcontractors as of January 1, 2013.
Effective January 1, 2013, Pennsylvania will require certain public works contractors and their subcontractors to enroll and participate in the federal employment eligibility verification program known as E-Verify. E-Verify is an Internet-based system that compares information from an employee's Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.
Who Is Affected by This New Law?
State public works contractors and subcontractors involved in projects that have an estimated cost in excess of $25,000 are subject to this new law.
What Is a "Public Work"?
"Public work" means 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 $25,000, but shall not include work performed under a rehabilitation or manpower training program.
Which Employees Need to Be Queried Through E-Verify?
All newly hired individuals hired by a public works contractor or subcontractor on or after January 1, 2013, for whom the employer is required to file a Form W-2 with the Internal Revenue Service.
Who Is a "Subcontractor" Under This Law?
A subcontractor is an employer of any tier that performs work for a public works contractor under a contract for public work. However, the term does not include material suppliers for a project.
What Are Subject Contractors and Subcontractors Required to Do?
A public works contractor or subcontractor is required to enroll in and participate in the E-Verify program and, in accordance with federal rules governing the use of E-Verify, verify the employment eligibility of each new employee hired on or after January 1, 2013. Note: Verification of existing employees is not required and may be a violation of the federal E-Verify rules.
How Will This Be Enforced in Pennsylvania?
Verification Form: As a precondition of being awarded a contract for a public work, or with respect to a contract that was awarded prior to the January 1, 2013, effective date but that has not yet been executed, a public works contractor will be required to provide the contracting agency with a Verification Form (a sample of which will be posted on the state government website) prior to the execution of the contract. The form will include a certification verifying the employer's compliance with the E-Verify requirement. A willful submission of a false certification may subject the employer to a fine ranging from $250 to $1,000 in addition to the sanctions described below.
Investigations: The Pennsylvania Department of General Services is authorized to conduct complaint-based and random investigations to ensure compliance with the law.
Sanctions: Employers that fail to comply with the E-Verify requirement may be subject to the following sanctions:
First Offense: Warning to violator and posting on state government's website
Second Offense: 30-day debarment from state public works contracts
Third Offense: Debarment from state public works contracts, ranging from 180 days to up to one year
Willful violators may be debarred for up to three years.
What Other Provisions Do Employers Need to Know About?
There are whistleblower protections that make it unlawful to take adverse action against an employee because the employee participates in an investigation or makes a complaint regarding a violation of this law.
Employers that, in good faith, take adverse action against a newly hired employee in reliance on an E-Verify determination that the individual is not employment authorized will not be subject to any liability based on the good-faith adverse action.
Contractors are not liable for the actions of a subcontractor.
Does Using E-Verify Mean Employers Do Not Need to Submit a Form I-9?
No. The E-Verify requirement is entirely independent of an employer's obligation to have on file a properly completed Form I-9, Employment Eligibility Verification, for every employee hired after November 6, 1986. Employers still need to have a Form I-9 on file for each employee, even if they participate in E-Verify. Failure to have a properly completed Form I-9 on file as required can subject an employer to sanctions ranging from $110 to $1,100 per employee, regardless of whether that employee is a lawful worker.
What Is the Bottom Line?
All public works contractors or subcontractors should ensure that they are enrolled in E-Verify before January 1, 2013, and begin using E-Verify for all new hires as of January 1, 2013.
What Should Subject Employers Do Now?
Visit the E-Verify homepage at www.uscis.gov/everify to learn about the program and the requirements for participating employers.
Download and review a copy of the E-Verify Memorandum of Understanding and review it with legal counsel to understand the obligations that participating employers must assume.
Attend a free webinar conducted by the U.S. Citizenship and Immigration Services (USCIS) on E-Verify to learn how to enroll and how the system works.
Consider engaging qualified counsel to assist in training with respect to immigration compliance overall and E-Verify participation specifically.
How Morgan Lewis Can Help
Our Immigration Compliance Practice offers training, counseling, and support in all areas of immigration compliance, including Form I-9 completion and retention, E-Verify participation, immigration policies, counseling on the use of electronic I-9/E-Verify software, and defense of employers in connection with I-9 investigations and charges of immigration-related discrimination. In addition, we publish and maintain a 50-state survey on state immigration laws. Please visit our website at www.morganlewis.com/immigrationcompliance for additional information on the scope of our services in this area and to download the latest version of our survey.
. Available online here.
. USCIS webinars can be accessed online here.