In the absence of a comprehensive federal policy, employers are forced to consider whether E-Verify use is required on a state-by-state, and sometimes contract-by-contract, basis. While states like Alabama, Arizona, and Mississippi have passed laws mandating the use of E-Verify by all employers, several states have laws or Executive Orders requiring state agencies and certain government contractors to use the system.

Most recently, in July 2012, Pennsylvania enacted legislation, The Public Works Employment Verification Act (SB 637), effective January 1, 2013, requiring contractors and subcontractors on state public works projects that have an estimated cost in excess of $25,000 to verify the employment eligibility of new employees using the federal E-Verify program. State public works contractors and subcontractors are required to provide the public agency that awarded the contract with a verification form acknowledging that they have verified the employment eligibility of each new employee using the E-Verify program. The verification form must be provided as a precondition of being awarded a contract for a public work or, with respect to a contract that was awarded prior to the effective date of the legislation but has not yet been executed, prior to the execution of the contract.

The failure to verify a new employee’s eligibility for employment may subject employers to the following sanctions:

• First violation results in a warning letter, posted on the state government’s website.

• Second violation results in debarment from state public works contracts for 30 days.

• Subsequent violations result in debarment from state public works contracts for six to 12 months.

• A court may order a contractor or subcontractor debarred from public work for three years if it finds that the violation was willful.

Failure to provide the verification form required under the law or completion of a false certification is punishable by a civil penalty of $250 to $1,000 for each violation. Adverse action, including retaliation or discrimination, by a contractor or subcontractor against an employee who reports or makes a complaint regarding a violation of this law or participates in a government investigation of an alleged violation is unlawful. Employees who suffer retaliation or discrimination may bring a court action for reinstatement and restitution equal to three times the amount of the employee’s wages and fringe benefits calculated from the date of the retaliation or discrimination. A contractor or subcontractor that relies in good faith on the E-Verify program to verify employment eligibility of new employees is immune from liability to an individual who is not hired or who is discharged from employment in the event that incorrect information has been provided to the public works contractor or subcontractor (for example, an E-Verify determination that the individual is not employment authorized).

What Action Should Employers Take?

Pennsylvania employers with public works contracts should ensure that they are enrolled in, and begin using, E-Verify on or before January 1, 2013, the effective date of the statute.

Tracking the myriad of state laws regarding E-Verify remains a challenge. Employers, particularly those with multi-state operations or those that contract with federal or state agencies, must continue to monitor the ever-changing labyrinth of E-Verify requirements. If you have any E-Verify-related questions, please contact your Ogletree Deakins attorney.

Note: This article was published in the August/September issue of the Immigration eAuthority.