State legislation that would require construction companies to verify that their employees are eligible to work in the U.S. will move closer to becoming law if the proposal advances
to the Senate this fall.
Earlier this year, State Rep. Ryan Mackenzie, a Republican who represents parts of Berks and Lehigh counties, introduced House Bill 1170, legislation that would require employers in the construction industry to use the federal E-Verify system to ensure their employees do not include people not authorized to work in the U.S.
E-Verify is a voluntary web-based system developed through a partnership between the U.S. Dept. of Homeland Security and the Social Security Administration.
In Pennsylvania, E-Verify is required for all publicly funded construction projects. However, Mackenzie’s bill would require its use even for companies that engage only in private-sector work.
Mackenzie introduced the legislation in April along with State Rep. John Galloway (D-Bucks). Known as the Construction Employee Verification Act, it passed in the House on a vote of 170 to 28 and is awaiting final consideration by the state Senate.
“We are hopeful they will take it up in the fall,” Mackenzie said, adding: “When you get into topics like immigration, it can be contentious. But when it comes to E-Verify, this has bipartisan support.”
From there, it would need Gov. Tom Wolf’s support. But he has expressed some concern over the bill, according to a statement from his spokesperson, J.J. Abbott.
“While he understands the challenges faced by construction workers, the governor has concerns about this bill,” Abbott said. “He thinks we should have a broader conversation about worker misclassification and how best to move forward.”
A source of concern
Mackenzie said he has had many meetings with people in the construction industry since serving as vice chairperson of the state Labor & Industry Council. The use of unauthorized workers on job sites was one of the two top issues that came up repeatedly. In all the discussions, the focus was on the construction industry and there were hearings on the legislation with various stakeholders, he said.
Many unscrupulous employers hire individuals not authorized to work in the U.S for their construction teams, Mackenzie said. These unfair business practices hurt workers by driving down wages, creating an unequal playing field for other employers, and depriving government of revenue that it could use to fund programs like unemployment compensation, he said.
“My legislation is aimed at going after these dishonest employers,” Mackenzie said. “Failure to use E-Verify while hiring new employees would be penalized by taking action against licenses required to do business.”
He said he modeled the legislation after an Arizona statute that was upheld by the U.S. Supreme Court in 2011.
One state senator, John DiSanto, a Republican who represents Dauphin and Perry counties, said in a statement that he has heard mixed opinions about the legislation. He indicated that some changes may be needed.
“My primary concern with the bill as drafted is the potential suspension of state permits and approvals on a job site when there is a violation, which could harm compliant contractors, legal employees and innocent property owners trying to complete a job in a timely manner,” DiSanto said. “I’m hopeful this issue can be addressed as the bill proceeds through the legislature.”
Support from labor, business
A representative from a local labor union said his organization supported it.
“For me, it’s going after the employers rather than the employees,” said Paul Anthony, business manager at International Brotherhood of Electrical Workers Local 375 in Allentown. “I feel like the employer is taking advantage of employees who have no rights. We feel that there are undocumented workers that are being taken advantage of.”
A leader of a trade organization based in Hanover Township, Lehigh County, was also supportive of the bill.
Every worker in the construction industry should be verified, said Joe Perpiglia, president and CEO of Associated Builders & Contractors Eastern Pennsylvania Chapter. His Eastern Pennsylvania chapter has 500 member companies.
“Overall, from an ABC perspective, because there’s such a workforce shortage, people do need to be here legally, they can’t be off the grid,” Perpiglia said. “I think that’s part of the discussion for the Senate. We’ve talked about providing a path to create a program that would help people become legal. I don’t think this bill prevents that.”
The bill puts a method in place for employers to use a system to check their employees’ status, he added.
Sean Boyle, owner of Boyle Construction in South Whitehall Township, said he has been using E-Verify for all employees for at least three or more years. Boyle also owns J. Dylan Concrete and Codemaster Inspection Services and has nearly 100 employees combined.
“We actually went backwards to get everyone E-Verified,” Boyle said. “Everybody in our company has that clearance. For us, we’ve been doing it, so there’s no change for us.”
Indeed, the E-Verify system has been in place for some employers in Pennsylvania since 2013. The new bill strengthens existing law and provides employers in the construction industry protection from worksite enforcement, said Min Suh, a shareholder with Buchanan Ingersoll & Rooney. Suh works as an employment-based immigration attorney in the firm’s Philadelphia office.
One aspect of the bill she would like to see clarified is the definition of “construction industry,” which she described as “overbroad.”
The bill also requires the state Dept. of Labor to investigate complaints of non-compliance and she said she is unsure if that organization has the staff to do it.
And she wonders whether it will win support from Wolf.
E-Verify began in 1996 as a pilot program. It was re-named E-Verify in 2007, according to the E-Verify website.
When the federal government first introduced the program, there was a lot of concern about its accuracy, Suh said. However, it has improved over time, she said, noting that other states require companies to enroll in E-Verify, though the requirements can vary by estate. Some require all companies to use it; others are focused on construction.
“It’s a matter of time before all 50 states are E-Verified,” Suh said. “From my perspective, E-Verify is something that I recommend to my clients. I think it’s something employers will have to pay attention to.”
HOW IT WORKS
Employers create cases based on information taken from an employee’s Form I-9, the standard form used to determine a person’s eligibility to work legally in the U.S.
E-Verify then compares that information electronically to records available to the U.S. Department of Homeland Security and the Social Security Administration (SSA).
The employer usually receives a response within a few seconds either confirming the employee’s employment eligibility or indicating that the employee needs to take further action to complete the case.