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Construction Industry Employee Verification Act Now Requires Pennsylvania Employers to Use E-Verify

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A new law was passed in Pennsylvania prohibiting employment of unauthorized employees.

Starting in October 2020, the construction industry employers are mandatorily required to verify the Social Security numbers of the employees.

What is E-Verify?

E-Verify is the second step of a two-step employment verification process. The Immigration Reform and Control Act of 1986 enacted the Form I-9 (the first step), to require U.S. workers to verify the identity and employment eligibility of newly hired employees. If any non-compliance is found by the Department of Labor and Industry (the Department), the employers will face serious penalties.

Who is governed by the new law?

The Construction Industry Employee Verification Act (the Act), covers the employers in the construction industry. The Act defines the construction industry as:

The industry which engages 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 work paid for from public funds.

The Act applies to the construction industry employer as follows:

  • An individual, entity or organization in the construction industry which transacts business in this Commonwealth and employs at least one employee in this Commonwealth
  • The term also includes a staffing agency that supplies workers to a construction industry employer

What must employers now do?

On and after the effective date of this law, employers must verify the employment and the eligibility of the employers through the E-Verify program and shall keep a record of the verification for a duration of employee’s employment or three years, whichever is longer. The Employer, after determining that an employee is unauthorized to work in the United States, must terminate the employee.

What should we expect from the Department?

Any complaints are to be raised with the Department, which will be investigated by them. They also have the authority to investigate a complaint based upon an anonymous tip. The department has the authority to:

  1. Enter and inspect the records of the employer in the employer’s place of business at any reasonable time
  2. Copy all the records that deem necessary
  3. Require the employer to give full and accurate statements regarding the employment and the verification process of the employees
  4. Interrogate with persons for determining whether the employer has complied with this Act

If the Department determines that the employer has hired unauthorized workers, a warning letter will be issued as the first step, detailing the violation. On receiving the warning letter, the employer must terminate the unauthorized workers within 10 business days and verify the same with the Department. The failure to provide such verification will be accounted for as a second violation and the department will refer the complaint to the Attorney general for enforcement.

The Attorney General can bring an action against the employer. If the employer is found to have violated the Act, the Court shall order the employer to terminate the employment of each unauthorized employer. The employer may be put in a three-year probationary period for each business location where the unauthorized employer performed work. Further non-compliance may lead to a suspension of the licenses of the employers.

The employers, if found to be non-compliant, can demonstrate to the Department that they verified the eligibility of the workers through E-Verify. This shall create the rebuttable presumption that the employer did not knowingly hire unauthorized employees. Due to which it is imperative for employers to have their I-9 records updated and to have every employee E-verified.

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