On January 1, the Public Works Employment Verification Act went into effect in Pennsylvania. Signed into law last July, the act requires all Pennsylvania public works contractors and subcontractors involved in projects of more than $25,000 to utilize E-Verify or lose the right to contract with Pennsylvania. With passage of the act, Pennsylvania joins a growing number of states with E-Verify requirements, including Alabama, Arizona, Georgia, Louisiana, North Carolina, Mississippi, South Carolina, Tennessee and Utah, where E-Verify is required for all employers; and Colorado, Florida, Indiana, Minnesota, Missouri and Oklahoma, where E-Verify is required for state contractors.

E-Verify is a free, Internet-based verification system that is administered by the U.S. Department of Homeland Security. The system requires employers to input employee information from I-9 forms. This information is then compared to that contained in DHS and Social Security Administration databases to determine if an employee is authorized to work in the United States.

Although still the subject of some controversy, the E-Verify system provides verification to 98 percent of queries within three seconds. The remaining 2 percent of queries often take several weeks to be resolved; however, during this resolution period, employers must continue employment of the affected individual.

In Pennsylvania, the Department of General Services is responsible for the administration, education and enforcement of the act. The DGS has issued a policy statement and a certification form, both of which are available on the agency's website.

All contractors, subcontractors and staffing companies providing services on public works projects of more than $25,000 must complete the required certification form for any contracts awarded after January 1 and for any contracts that were not yet fully implemented as of January 1. Submission of the certification form is a pre-condition to award of a contract. The submitted forms will be kept on file by the public body for the duration of the contract.

The certification form contains the following statements made under penalty of perjury: (1) the entity is enrolled in E-Verify as of the date the certification is signed; (2) the entity is conducting an E-Verify query for each new hire within five days of the hire date; (3) the entity is maintaining documentation of its compliance with the E-Verify program; and (4) to the best of the signer's knowledge, all people hired after January 1 are "authorized to work in the United States."

The person signing the form must be an authorized representative of the company who has sufficient knowledge to make the required representations. The DGS reserves the right to request additional documentation to prove that the signer has the requisite knowledge.

DGS policy also requires contractors to include notification of the act's requirements to subcontractors by including notification of the applicability of the act, information regarding the use of E-Verify and reference of the DGS website to obtain a copy of the certification form. All subcontractors to a public works contract that meets the $25,000 threshold must participate in E-Verify regardless of the size of the subcontract. They are also required to submit their own certification form to the contracting agency.

The act defines "public work" 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 $25,000." Work performed under a rehabilitation or manpower training program is not included in the definition of a "public work."

Violations of the act include: (1) failing to verify the employment eligibility of a new hire through E-Verify and (2) making false statements or misrepresentations in connection with the completion or submission of the certification form to a public body. Providing a false certification is punishable by a civil fine, ranging from $250 to $1,000. Employers that fail to enroll in E-Verify or utilize the system for all new hires face the following penalties:

• First offense: Warning to violator in writing and posting on the DGS website.
• Second offense: 30-day debarment from state public works contracts.
• Third offense: 180 days or up to one year debarment from state public works contracts.
• Willful violators may be debarred for up to three years.

Contractors may be charged with only one offense per contract, regardless of the number of employees the violator failed to process through the E-Verify system. The act also requires that each general contractor and subcontractor, no matter what its position in the contracting tier, sign its own certification — thereby making each independently liable for E-Verify participation. The act also clearly limits liability to an entity's own violations, such that no contractor or subcontractor can be held responsible for the failure of any other contractor or subcontractor on a particular project.

The DGS will enforce the act through random and complaint-based investigations and audits. Any complaint or allegation that is deemed credible will be investigated. During an audit, the DGS may request documentation of the date of hire for all employees; documentation of compliance with the act through the use of E-Verify; and any other information required by the DGS to ensure compliance with the act and E-Verify guidelines.

The act provides protections for whistleblowers against retaliation, as well as for employees against immigration-related discrimination, including discrimination based upon national origin and citizenship status.

To comply with the act and federal E-Verify requirements, employers should maintain confirmation of an employee's e-verification by indicating the system-provided confirmation number on the employee's I-9 form. In addition, copies of all notices issued by the system should be maintained with an employee's I-9 form. Employers may want to review and comply with all requirements contained in the federal E-Verify memorandum of understanding. Such requirements include E-Verify posters at the worksite, training for system users, timeframes for providing employees with system notifications and a requirement that employers notify the system upon termination of an employee with an E-Verify query pending.

A significant difference between the federal E-Verify requirement and the Pennsylvania act is the timeframe for submission of E-Verify queries. The federal memorandum of understanding requires initiation within three days of hire, while the Pennsylvania act requires initiation within five days of hire.

It is recommended that employers follow the federal requirement. By following the state requirement, employers will be in violation of the memorandum of understanding. Although no federal penalties currently are in place, as it is a voluntary program, employers will receive cease-and-desist letters from the DHS regarding the late submission of queries. With repeated violations, they could be terminated from the E-Verify program.

Public works contractors who are new to the E-Verify system should ensure that their I-9 employment eligibility verification form policies and procedures are sound and that I-9 administrators are well trained. The information gathered during the I-9 process forms the basis of the E-Verify query, so queries will only be as good as the information submitted. Since all E-Verify queries, and results, will be known to the federal government, it may be in a contractor's best interest to ensure at the outset through the I-9 process that employees are work-authorized.

Valentine Brown, a partner in the Employment, Labor, Benefits and Immigration Practice Group of Duane Morris in Philadelphia, serves as global immigration counsel to a diverse group of multi-national and domestic corporations and their employees.

Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.