Section 168.4 - Procedures, presumptions and defenses(a) Complaints.--A complaint about a violation of section 3(a) may be submitted to the department. The department shall have the authority to investigate complaints under this act. Pursuant to an investigation of a complaint, the department may:(1) Enter and inspect the place of business or place of employment of any employer of employees in any occupation in this Commonwealth at any reasonable time, for the purpose of examining and inspecting records of the employer that in any way relate to compliance with this act.(2) Copy any or all records as the department may deem necessary or appropriate.(3) Require from an employer full and accurate statements in writing, at such times as the department may deem necessary, of the work authorization verification process for all employees in the employer's employment.(4) Interrogate persons for the purpose of ascertaining whether an employer has complied with this act.(b) Form.--The department shall prescribe a complaint form for an individual to allege a violation of section 3(a). An individual who knowingly provides materially false information in a complaint form under this subsection shall be subject to punishment under 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities).(c) Duty to investigate.--Upon receipt of a complaint on a prescribed complaint form alleging that an employer knowingly employs an unauthorized employee, the department shall investigate whether the employer has violated section 3(a) if all the information required to complete the form has been provided, including the name of the person filing the complaint.(d)Authority to investigate.--The department may investigate a complaint that is not submitted on a prescribed complaint form, including an anonymous complaint.(e) Prohibition.--The department may not investigate a complaint that is based solely on race, color or national origin.(f) Verification.--If investigating a complaint, the department shall verify the work authorization of the alleged unauthorized employee with the Federal Government under section 642(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( Public Law 104-208, 8 U.S.C. § 1373 (c)). A Commonwealth or local official may not attempt to independently make a final determination on whether an unauthorized employee is authorized to work in the United States.(g)Notification and action.--If, after an investigation, the department determines that the alleged employee is an unauthorized employee, the department shall do all of the following: (1) For a first violation, the department shall issue a warning letter detailing the violation and informing the construction industry employer of the provisions of this act. Notwithstanding paragraph (2), a violation by a construction industry employer that occurs 10 years or more after a prior violation shall be deemed a first violation. The following shall apply: (i) The department may not issue a warning letter if the employer demonstrates that the employment eligibility of the unauthorized employee was verified in good faith through the E-Verify Program in accordance with section 3(b).(ii) After the issuance of a warning letter, the employer shall verify in writing to the department within 10 business days that the employer has terminated the employment of each unauthorized employee in this Commonwealth. If the employer fails to provide such verification, the violation shall constitute a second violation, and the department shall make a referral to the Attorney General under paragraph (2).(iii) The employer may appeal the issuance of the warning letter under the provisions of 2 Pa.C.S. (relating to administrative law and procedure).(2) For a second or subsequent violation, the department shall refer the case to the Attorney General for enforcement. The Attorney General shall bring an action against the employer in the county where the unauthorized employee is or was employed by the employer. The Attorney General shall not bring an action against an employer for a violation that occurred before the effective date of this section.
(h) Expedited action.--Upon docketing, the court shall expedite the action, including assigning the hearing at the earliest practicable date.(i)Determination.--In determining whether an employee is an unauthorized employee, the court shall consider only the Federal Government's determination under section 642(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The Federal Government's determination shall create a rebuttable presumption of the employee's status. The court may take judicial notice of the Federal Government's determination and may request the Federal Government to provide automated or testimonial verification under section 642(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.(j)Rebuttable presumption.--Proof that the employer verified the employment authorization of an employee through the E-Verify program shall create a rebuttable presumption that an employer did not knowingly employ an unauthorized employee.(k) Affirmative defense.--For the purposes of this section, it shall be an affirmative defense if the employer demonstrates that it has complied in good faith with section 274A(b) of the Immigration and Nationality Act (66 Stat. 163, 8 U.S.C. § 1324a (b)). An employer shall be considered to have complied with section 274A(b) of the Immigration and Nationality Act, notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if the employer establishes a good faith attempt to comply with section 274A(b) of the Immigration and Nationality Act.Added by P.L. TBD 2019 No. 75, § 4, eff. 10/6/2020.