[Added 7-5-2011 by Ord. No. 12-11]
For the purposes of this article, the following terms shall
have the definitions indicated, unless the context clearly requires
otherwise:
The Allegheny County Controller.
The electronic employment verification program created in
Public Law 104-208 and expanded in Public Law 108-156, as amended,
and jointly administered by the United States Department of Homeland
Security and the Social Security Administration, or any successor
program designated by the federal government for verification of whether
an employee has the necessary employment authorization(s).
Any public contract for services between the County and a contractor;
or
Any contract or a purchase authorization between the County
and a contractor for construction, alteration, improvement, repair,
maintenance or demolition of any public building or public work by
or on behalf of the County.
A person having a contract with the County, but shall not
include vendors who are parties to contracts solely for the sale of
goods or other tangible materials to the County.
Any grant, loan that is forgiven or discounted below the
market rate over the life of the loan, bond financing, infrastructure
improvements related to a project, below-market sale or lease of property,
or other form of financial assistance related to a project with an
aggregate value of at least $100,000, but shall not include an educational
or training grant.
Shall have the meaning prescribed under the terms of 8 U.S.C.
§ 1324(a), and shall be interpreted consistently with such
section and any federal rules or regulations applicable thereto.
Hired to work in the United States since the effective date
of the contract.
An alien that is not authorized to be employed within the
United States pursuant to the terms of 8 U.S.C. § 1324a(h)(3),
and shall be interpreted consistently with such section and any federal
rules or regulations applicable thereto.
A.
Prior to executing a contract, each prospective County contractor
or contactor desiring to work on a County-subsidized project shall
certify that, at the time of the certification, it does not knowingly
employ or contract with an unauthorized alien who will perform work
under the contract and that the contractor will participate in the
e-verify program in order to confirm the employment eligibility of
all employees who are newly hired for employment to perform work under
the contract.
B.
Each contract shall include a provision that the County contractor
or contactor desiring to work on a County-subsidized project shall
not:
(1)
Knowingly employ or contract with an unauthorized alien to perform
work under any contract, whether with the County or County-subsidized
entity; or
(2)
Enter into a contract with a subcontractor that fails to certify
to the contractor that the subcontractor shall not knowingly employ
or contract with an unauthorized alien to perform work under the contract
with the County or County-subsidized entity.
C.
Each contract with the County or contactor desiring to work on a
County-subsidized project shall include the following provisions:
(1)
A provision stating that the contractors have confirmed the
employment eligibility of all employees who are newly hired for employment
to perform work under the contract through participation in the e-verify
program;
(2)
A provision that prohibits the contractors from using the e-verify
program procedures to undertake pre-employment screening of job applicants
while the contract is being performed and that otherwise requires
the contractor to comply with any and all federal requirements related
to use of the e-verify program, including, but not limited to, all
program requirements related to employee notification and preservation
of employee rights;
(3)
A provision requiring that, if the contractors desiring to work
or working on a County-subsidized project obtain actual knowledge
that a subcontractor performing work under the contract knowingly
employs or contracts with an unauthorized alien, the contractors shall
be required to:
(a)
Notify the subcontractor and the County within three days that
the contractor has actual knowledge that the subcontractor is employing
or contracting with an unauthorized alien; and
(b)
Terminate the subcontract with the subcontractor if, within three days of receiving the notice required pursuant to Subsection C(3)(a), the subcontractor does not stop employing or contracting with the unauthorized alien; except that the contractor shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an unauthorized alien.
(4)
A provision that requires the contractor to comply with any
reasonable request by Controller made in the course of an investigation
that the Controller is undertaking pursuant to the terms of this article.
D.
If a contractor violates a provision of the contract required pursuant to Subsection B or C of this section, the County may terminate the contract for a breach of the contract. If any contract is so terminated, the contractor or entity to which the County subsidy is provided shall be liable for actual and consequential damages to the County. Any such termination of a contract due to a violation of this section may also, at the discretion of any County department or agency responsible for soliciting contract bids and proposals or any County department or agency responsible for awarding County subsidies, constitute grounds for disqualifying the violator from submitting bids or proposals for future contracts with the County, working on future County-subsidized projects, or from receiving future County subsidies.
Any entity receiving a County subsidy that is equal to or greater
than the aggregate of $100,000 shall provide a list of the contractors
or subcontractors on the County-subsidized project to the County and
Controller. Any and all of these contractors shall meet all the verification
and certification requirements under this article. The entity shall
also notify the general contractor(s) on the County-subsidized project
to make sure the general contractor(s) is aware of the requirements
of this article as well as any all other contractors and subcontractors.
A failure of the entity to which a County subsidy is provided to meet
either of these requirements may, at the discretion of the County
Manager, result in the entity being subject to the provisions of § 5-912.02D.
A.
The Controller shall receive complaints of suspected violations of
a provision of a contract required pursuant to the terms of § 5-912.02,
and shall have discretion to determine which complaints, if any, are
to be investigated.
B.
The Controller may investigate whether a contractor is complying
with the contract provisions required pursuant to the terms of § 5-912.02.
During such investigation, the Controller may inspect, audit or examine
any and all documents, records, books, correspondence and other evidence,
including on-site inspections pertaining to the citizenship of any
person performing work on the contract, or take any other reasonable
steps that are necessary to determine whether a contractor is complying
with the provisions of the contract required pursuant to the terms
of § 5-912.02.
C.
The Controller shall notify the head of the department or agency
responsible for administering the contract if the Controller suspects
that there has been a breach of a provision in the contract required
pursuant to § 5-912.02.
If any contract is terminated pursuant to § 5-912.02D,
the head of the department or agency administering the contract shall
report the termination to the Immigration and Customs Enforcement
Division of the United States Department of Homeland Security or its
successor agency.
A.
The County shall not deem a contractor, subcontractor, or entity
to which a County subsidy is provided to be in material breach of
a contract if such entity establishes that it has complied with the
employment verification provisions prescribed by federal law and the
e-verification requirement prescribed by this article.
B.
When investigating a complaint, performing an audit, or otherwise
enforcing the requirements of this article, the County shall not attempt
independently to make a final determination on whether an employee
is authorized to work in the United States, recognizing that any such
determination must be made by federal officials in accordance with
federal law.
C.
A contractor or entity to which a County subsidy is provided that
establishes that it has complied in good faith with the employment
verification requirements set forth in federal law and the e-verification
requirements set forth in this article shall, in any action to enforce
the requirements of this article, have an affirmative defense that
the employer did not knowingly employ an unauthorized alien.
D.
Nothing in this article shall be construed as requiring a contractor
or entity to which a County subsidy is provided to violate any terms
of participation in the e-verification program.
Nothing contained within this article shall be construed to
create any private right of action for enforcement of its provisions
or to authorize any person to file suit to recover damages or seek
equitable relief for any violation of the terms of this article.
