By Ryan Deto
In Pennsylvania, it’s not uncommon to hear politicians dog whistle to nativism, especially when it comes to labor.
Last month at the Shale Insight conference in Downtown, President Donald Trump received a large applause when he told the crowd he would “always put America first.” In a special election for state senate earlier this year, attack ads were levied against candidate D. Raja (R-Mt. Lebanon), an Indian-American businessman who runs a software company that employs workers from his native India and in Allegheny County, for “outsourcing” jobs and “importing talent.”
And now, a new law has hit Pennsylvania’s books that harks back to similar themes.
On paper, the Construction Industry Employee Verification Act, aka House Bill 1170 (HB 1170) — known more commonly as the E-Verify law — looks to tackle problems associated with labor fairness and to ensure everyone is following the same rules.
It passed with overwhelming support on Oct. 7, moving swiftly through the legislature before Gov. Tom Wolf (D-York) let it lapse into law without signing. (When Pennsylvania governors don’t veto bills within 10 days of reaching the governor’s desk, they become law.)
But there are disagreements on whether the law, which will require employees of construction companies to be run through a verification system to determine if they are legally allowed to work in the U.S., will be able to accomplish those goals.
The bill requires all private construction employers statewide to run new hires through a federal E-Verify system, an electronic database that checks the legal work-status of new hires by comparing the employees’ information to that of the Social Security Administration and federal immigration officials. More than 20 states have mandated the use of E-Verify in some or all industries.
Proponents of the law say it helps catch violators who employ off-the-book workers and thus avoid paying taxes and workers’ compensation fees. But opponents say the law will disproportionately hurt immigrants, noting the ineffectiveness of similar laws in other states and arguing it could lead to the deportation of undocumented immigrants and exacerbate a labor shortage. Labor unions and immigrant advocates are now wondering why the E-Verify law passed so quickly, and why these potential shortcomings were not fully vetted.
In April, the General Contractors Association of Pennsylvania (GCAP) provided testimony in favor of the state’s E-Verify law. GCAP director Jon O’Brien told a state House committee that, “because of the growing underground construction economy, construction companies are losing market share” and that companies associated with GPAC are hurting.
Guillermo Perez, head of Pittsburgh’s chapter of Labor Council of Latin American Advancement (LCLAA), disagrees.
Perez is a vocal critic of Pennsylvania’s E-Verify law for many reasons. He says labor movements should be trying to bring in all workers — including undocumented immigrants — to union membership instead of turning them into federal immigration officials for possible deportation. But a big reason that LCLAA, which is affiliated with the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), is opposed to E-Verify is the possible economic effect it could have on Pennsylvania, particularly the western part of the state.
He says E-Verify could compound the construction industry’s labor shortage by intimidating immigrants, both undocumented and with work visas, from seeking jobs out of fear of discrimination and deportation.
HB 1170 requires new hires to be run through electronic databases, but there’s also a complaint system that other workers can utilize to tip off officials of alleged illegal workers.
“We have a labor shortage,” says Perez of the local construction industry. “There is no evidence that local construction companies are losing work because of undocumented immigrants.”
In 2017, residential construction companies and the Master Builders’ Association of Western Pennsylvania (MBA) complained of skilled worker shortages in Westmoreland County, according to TribLive. In 2018, Builders Guild of Western Pennsylvania told KDKA that retirements are going to lead to a shortage of about 17,000 workers in the area. According to an April article in the Pittsburgh Post-Gazette, with unemployment below 4 percent in the region, it has become more difficult for construction employers to find workers.
The MBA of Western Pennsylvania is an affiliate of GCAP, which was part of the advocacy for HB 1170.
E-Verify bills also don’t always work out as intended. Perez notes that even though E-Verify for all employees has been on the books since 2008 in Mississippi, there were still large-scale raids recently at a chicken plant there.
Perez thinks the Pennsylvania law is especially flawed in its own enforcement mechanisms. He says the law disproportionately hurts workers over employers, and the complaint system could lead to profiling and open hostility between employees.
“Do we want to have an environment where people can anonymously claim that someone is undocumented?” says Perez. “It is Kafkaesque. It harkens back to a time I thought we were past.”
Perez notes that a section of the bill with an enforcement mechanism against employers who hire illegal workers might have holes. Section 5 (a) (4) of HB 1170 says agencies are “to suspend each license that is held by the employer if the employer fails to timely submit the verification.”
But there might not be any licenses for the state to suspend.
The state Department of Labor and Industry (DLI) didn’t return requests for questions on how specifically HB 1170 will strip business licenses, but the DLI website says that state government “currently has no licensure or certification requirements for most construction contractors (or their employees).” Home improvement contractors must be registered with the state; some municipalities, like Pittsburgh, Philadelphia, and Scranton, have local licensing rules for construction companies, but, according to the DLI website, “the Commonwealth has no jurisdiction” and maintains no records in municipal licensing, and that information “can only be obtained by contacting the municipality where construction work will occur.”
Nothing in the HB 1170 specifies this dynamic.
Sam Williamson, Western Pennsylvania director of SEIU 32BJ, calls HB 1170 an anti-immigrant attack. His union, the largest service workers union in the state, is opposed to the E-Verify law. He says its main goal is to put undocumented immigrant workers into the hand of Immigration and Customs Enforcement (ICE).
“This anti-immigrant measure will not strengthen workplaces,” says Williamson. “The bill places the enforcement mechanism on the workers themselves, not the employers that hire them.”
But Pennsylvania Building and Construction Trades Council president Frank Sirianni bristles at any suggestion HB 1170 is an anti-immigrant law. He recently told the Pennsylvania Capital-Star the law will help stop the exploitation of immigrants and migrant workers.
“Perhaps we can find a way for more people who come into the country to become citizens in the future,” Sirianni said to the Capital-Star. “But abusing them through bad business practices isn’t helping anyone.”
However, immigration activists like Dong Yoon Kim are skeptical HB 1170 will help more people than it will harm. Dong Yoon, who works for the Pennsylvania Immigration and Citizenship Coalition (PICC), says the law could lead to profiling people who appear to be immigrants, particularly Latinos.
Dong Yoon thinks claims that the law is more pro-labor than anti-immigrant are suspect, given presumptions that PICC believes HB 1170 shares many similarities to a model bill from the American Legislative Exchange Council (ALEC).
ALEC is a right-wing nonprofit that helps to draft model legislation for state legislators. It’s associated with several anti-immigrant and anti-union bills.
In 2010, an ALEC model bill became SB 1070 in Arizona, broadly considered one of the most anti-immigrant bills to be passed into law in a U.S. state, as it required non-citizens over 18 to carry ID at all times or face a misdemeanor charge. ALEC also has been actively providing model legislation for “right to work” bills for several states, which virtually all unions, including the United Brotherhood of Carpenters, regard as anti-union.
One similarity between the ALEC model bill on E-Verify and HB 1170 involves language of license suspensions, the same issue the state might not be able to enforce against employers.
According to the progressive watchdog group the Center for Media and Democracy, the ALEC E-Verify model legislation reads, “The court shall order the appropriate agencies to suspend all licenses subject to this subdivision that are held by the employer.” HB 1170 states that agencies are “to suspend each license that is held by the employer if the employer fails to timely submit the verification.”
HB 1170 fails to mention the complexity of Pennsylvania’s construction business licensing, which is mostly run through municipalities and which the state has little to no jurisdiction over.
Additionally, the organizations advocating for E-Verify laws have nefarious ties to white nationalist groups. During Democratic debates in October, the immigration-restriction group NumbersUSA ran several national ads pushing for E-Verify laws. NumbersUSA gets the majority of its funding from Pittsburgh’s Colcom Foundation, a group founded by Cordelia Scaife May, who espoused anti-immigrant and white nationalist sentiments throughout her life. Colcom also funds anti-immigrant groups, including VDare, a white nationalist website classified as a hate group by the Southern Poverty Law Center.
Williamson also says HB 1170 doesn’t fix a larger industry problem of misclassifying workers. He says several industries in Pennsylvania, including the construction industry, misclassify their workers as independent contractors when they really act as employees. Independent contractors technically don’t work for companies, so they are not entitled to benefits, health insurance, or other requirements of employers.
But HB 1170 was supposed to come into law as part of a package with a misclassification bill called HB 716.
“As for HB 1170 and the requirement of E-Verify for all construction in Pennsylvania, this is a perfect companion piece of legislation for HB 716,” reads April testimony from GCAP.
HB 716 was a rarity in Harrisburg in that it had universal support. Not one state House representative voted against its passage in the House. LCLAA and SEIU also supported it. The E-Verify bill, on the other hand, had universal support from Republicans and many Democrats, but also opposition from progressive Democrats, unions like the United Steelworkers, and immigrant-rights organizations. The only Pittsburgh-area legislators to oppose HB 1170 were state Reps. Dan Frankel (D-Squirrel Hill), Sara Innamorato (D-Lawrenceville), and Summer Lee (D-Swissvale).
Even so, HB 1170 passed through the legislature, and HB 716 has stalled in the state Senate.
In the end, Perez says the state’s E-Verify law will likely just make life harder for immigrants.
According to a 2017 paper from the Dallas Federal Reserve, E-Verify laws drove down wages for mostly male undocumented immigrant workers. Correspondingly, the paper found that employment rates for female undocumented workers increased, indicating they were trying to make up for the lost wages of their male counterparts.
Williamson agrees the law will mostly just punish immigrant workers and believes the Democrats who voted for HB 1170 will have to answer to their voters in the near future.
“It puts immigrant workers into the hands of the ICE in the era of Trump; to say that is not anti-immigrant is preposterous,” says Williamson.