Florida Senate - 2011 SB 518 By Senator Hays 20-00301A-11 2011518__ 1 A bill to be entitled 2 An act relating to the verification of employment 3 eligibility; defining terms; requiring every employer 4 to use the Employment Authorization Program to verify 5 the employment eligibility of each employee on or 6 after a specified date; providing that a business that 7 does not use the E-Verify system to verify the 8 employment eligibility of the employee shall lose its 9 license to do business in this state until the 10 business has registered with the E-Verify system; 11 requiring that each verification be made in accordance 12 with certain provisions of federal law; prohibiting an 13 employer from employing an unauthorized alien; 14 authorizing certain persons to file a complaint with 15 the Department of Business and Professional Regulation 16 or the Agency for Workforce Innovation alleging that 17 an employer has employed an unauthorized alien; 18 prohibiting the filing of a complaint based on race, 19 color, or national origin; providing that a person who 20 knowingly files a false and frivolous complaint 21 commits a misdemeanor of the second degree; providing 22 criminal penalties; requiring the department or the 23 Agency for Workforce Innovation to notify the employer 24 upon receipt of a complaint; requiring the department 25 or the Agency for Workforce Innovation to investigate 26 whether a violation has occurred; authorizing the 27 department and the Agency for Workforce Innovation to 28 issue a subpoena for the production of documents; 29 requiring the department or the Agency for Workforce 30 Innovation to request that the Federal Government 31 verify the employment eligibility of any employee 32 named in a complaint; prohibiting the department or 33 the Agency for Workforce Innovation from independently 34 making a final determination regarding whether an 35 employee is authorized to be employed in the United 36 States; requiring the department or the Agency for 37 Workforce Innovation to notify certain entities after 38 determining that the employer has employed an 39 unauthorized alien; prohibiting the department or the 40 Agency for Workforce Innovation from acting on a 41 complaint for a violation of law occurring before a 42 specified date; requiring the department or the Agency 43 for Workforce Innovation to order an employer to take 44 certain action upon a first violation of the 45 prohibition against hiring an unauthorized alien; 46 requiring that certain licenses of an employer be 47 suspended if the employer fails to file an affidavit 48 confirming the termination of employment of an 49 unauthorized alien; providing for reinstatement of 50 such licenses under certain circumstances; requiring 51 that the department or the Agency for Workforce 52 Innovation take certain action against an employer for 53 a second violation within a specified period following 54 the prohibition against hiring an unauthorized alien; 55 requiring the Agency for Workforce Innovation to 56 maintain a public database containing certain 57 information and make such information available on its 58 website; authorizing the department or the Agency for 59 Workforce Innovation to apply to the appropriate 60 circuit court for a judicial order directing an 61 employer to comply with an order issued by the 62 department or the Agency for Workforce Innovation; 63 creating a rebuttable presumption for certain 64 employers that the employer did not knowingly employ 65 an unauthorized alien; authorizing an employer or 66 employee to seek an injunction under certain 67 circumstances; providing that certain actions by an 68 employer constitute an unfair trade practice; 69 providing that an employee aggrieved by such actions 70 has a private cause of action against the employer for 71 a deceptive and unfair trade practice; providing for 72 an award of court costs and attorney’s fees; providing 73 that a cause of action does not exist against an 74 employer participating in the E-Verify system on the 75 date of such actions; providing for construction of 76 the act; creating s. 287.135, F.S.; defining terms; 77 requiring every public employer to register with and 78 participate in the E-Verify system for specified 79 purposes; prohibiting a public employer, contractor, 80 or subcontractor from entering into a contract for the 81 physical performance of services in this state unless 82 the contractor or subcontractor registers and 83 participates in the system; requiring that 84 subcontractors certify certain information to 85 contractors by specified means; requiring that a 86 contractor maintain a copy of the certification for a 87 specified period; authorizing a contractor to 88 terminate a contract with a subcontractor under 89 certain conditions; providing that such termination is 90 not a breach of contract; authorizing a subcontractor 91 to challenge a termination within a specified period; 92 requiring that a public contractor terminate a 93 contract if the contractor or subcontractor is in 94 violation of the act; providing that such termination 95 is not a breach of contract; authorizing a contractor 96 or subcontractor to challenge such a termination 97 within a specified period; providing guidelines for 98 interpretation of the provisions of the act; providing 99 for severability; providing an effective date. 100 101 Be It Enacted by the Legislature of the State of Florida: 102 103 Section 1. Use of E-Verify system required for private 104 employers; business licensing enforcement; private right of 105 action for displaced worker.— 106 (1) DEFINITIONS.—As used in this section, the term: 107 (a) “Agency” means an agency, department, board, or 108 commission of this state or a county, municipality, or town 109 issuing a license for the purpose of operating a business in 110 this state. 111 (b) “Department” means the Department of Business and 112 Professional Regulation. 113 (c) “E-Verify system” means the Employment Authorization 114 Program, formerly the “Basic Pilot Program,” under Pub. L. No. 115 104-208, Div. C, Title IV, Subtitle A, 110 Stat. 3009-655 (Sept. 116 30, 1996), as amended, or any successor program designated by 117 the Federal Government for verification that an employee is an 118 employment-authorized alien. 119 (d) “Employee” means any person who performs employment 120 services in this state for an employer pursuant to an employment 121 relationship between the person and employer. An employee does 122 not include an independent contractor. 123 (e) “Employer” means any individual or type of organization 124 transacting business in this state which holds or has applied 125 for a license issued by an agency and employs individuals who 126 perform employment services. The term does not include an entity 127 that hires an independent contractor to perform work or the 128 occupant or owner of a private residence who hires casual 129 domestic labor to perform work customarily performed by a 130 homeowner entirely within a private residence. 131 (f) “License” means a license, permit, certificate, 132 approval, registration, charter, or similar form of 133 authorization required by law and issued by an agency for the 134 purpose of operating a business. A license includes, but is not 135 limited to: 136 1. Articles of incorporation. 137 2. A certificate of partnership, a partnership 138 registration, or articles of organization. 139 3. A grant of authority issued pursuant to state or federal 140 law. 141 4. A transaction privilege tax license. 142 (g) “Unauthorized alien” means an alien is not authorized 143 under federal law to be employed in the United States, as 144 described in 8 U.S.C. 1324a(h)(3). This term shall be 145 interpreted consistently with that section and any applicable 146 federal rules or regulations. 147 (h) “Knowingly employ an unauthorized alien” has the same 148 meaning as prescribed in 8 U.S.C. 1324a. The term shall be 149 interpreted consistently with s. 1324a and any federal rule or 150 regulation applicable to the unlawful employment of aliens. 151 (2) VERIFICATION OF EMPLOYMENT ELIGIBILITY; SUSPENSION OF 152 BUSINESS LICENSE.— 153 (a) Beginning January 1, 2012, every employer shall, after 154 making an offer of employment which has been accepted by an 155 employee, use the E-Verify system to verify the employment 156 eligibility of the employee. Verification must occur within the 157 period stipulated by federal law or regulations after the hiring 158 of the employee. However, an employer is not required to verify 159 the employment eligibility of a continuing employee hired before 160 the date of the employer’s registration with the system. 161 (b) A business that has not complied with paragraph (a) 162 shall lose its license to do business in this state until the 163 business has registered with the E-Verify system and provided 164 the department with an affidavit stating that the business has 165 registered with the E-Verify system. 166 (3) EMPLOYMENT OF UNAUTHORIZED ALIENS; PROHIBITION; FALSE 167 AND FRIVOLOUS COMPLAINTS; VIOLATION; CLASSIFICATION; SUSPENSION 168 AND REVOCATION OF LICENSE.— 169 (a) An employer may not employ an unauthorized alien. 170 (b) A person who has actual or constructive knowledge that 171 an employer employs, or has within the last 90 days employed, an 172 unauthorized alien may file a complaint with the department or 173 the Agency for Workforce Innovation. 174 (c) A complaint may not be based on race, color, or 175 national origin, except to the extent permitted by the United 176 States Constitution or the State Constitution. 177 (d) A person who knowingly files a false and frivolous 178 complaint under this subsection commits a misdemeanor of the 179 second degree, punishable as provided in s. 775.082 or s. 180 775.083. 181 (e) Upon the receipt of a valid complaint of a violation of 182 paragraph (a), the department or the Agency for Workforce 183 Innovation shall notify the employer of the complaint and direct 184 the employer to notify any affected employees named in the 185 complaint. 186 (f) The department or the Agency for Workforce Innovation 187 shall investigate whether a violation has occurred and hold an 188 administrative hearing at which the employer may present any 189 evidence he or she desires and at which the employer has the 190 right to counsel. The department or the Agency for Workforce 191 Innovation shall request that the Federal Government verify, 192 pursuant to 8 U.S.C. 1373(c), the employment status of any 193 employee named in the complaint. The department or Agency for 194 Workforce Innovation may not independently make a final 195 determination as to whether a particular employee is an 196 unauthorized alien. The department or agency shall rely upon 197 verification of employment authorization provided by the Federal 198 Government. 199 (g) The department or agency may issue a subpoena to 200 produce employment records that relate to the recruitment, 201 hiring, employment, or termination policies, practices, or acts 202 of employment relating to the investigation of a valid 203 complaint. 204 (h) If the department or Agency for Workforce Innovation 205 confirms that the employer has employed an unauthorized alien, 206 the department or agency shall notify: 207 1. The United States Immigration and Customs Enforcement 208 Agency of the identity of the unauthorized alien and, if known, 209 the alien’s address or location in the state; and 210 2. The local law enforcement agency of the presence of the 211 unauthorized alien in the jurisdiction. 212 (i) The department or Agency for Workforce Innovation may 213 not act upon a complaint against any employer for any violation 214 occurring before January 1, 2012. 215 (j)1. Upon finding that an employer has violated paragraph 216 (a), the department or Agency for Workforce Innovation shall 217 order the employer to: 218 a. Terminate the employment of all unauthorized aliens; and 219 b. File a sworn affidavit with the department within 10 220 days after the receipt of the order. The affidavit must state 221 that the employer has corrected the violation by: 222 (I) Terminating the unauthorized alien’s employment; 223 (II) Requesting that a second or additional verification of 224 the alien’s employment status be authorized, by using the E 225 Verify system; or 226 (III) Attempting to terminate the unauthorized alien’s 227 employment, and such termination has been challenged in a court 228 of competent jurisdiction. 229 2. If the employer fails to file the required affidavit, 230 the department or Agency for Workforce Innovation shall order 231 the appropriate agencies to suspend all applicable licenses held 232 by the employer. All such licenses suspended shall remain 233 suspended until the affidavit is filed. 234 235 Notwithstanding any other law, the suspended licenses shall be 236 deemed to have been reinstated upon the filing of the affidavit. 237 During the pendency of an action, the 10-day period shall be 238 tolled. The 10-day period shall also be tolled during any period 239 during which the Federal Government allows an alien to challenge 240 the Federal Government’s determination of his or her immigration 241 status or employment authorization. 242 3. Licenses subject to suspension under this subsection 243 include all licenses that are held by the employer and that are 244 necessary to operate the employer’s business at the location at 245 which the unauthorized alien performed work. If a license is not 246 necessary to operate the employer’s business at the specific 247 location at which the unauthorized alien performed work, but a 248 license is necessary to operate the employer’s business in 249 general, the licenses subject to suspension under subparagraph 250 2. include all licenses held by the employer at the employer’s 251 primary place of business. 252 4. The department shall adopt rules pursuant to ss. 253 120.536(1) and 120.54, Florida Statutes, by July 1, 2011, to 254 establish procedures for an agency to exempt certain licenses 255 issued by the agency which the agency determines, with the 256 concurrence of the department, are unrelated to operating a 257 business in this state. 258 (k) Upon finding a second or subsequent violation of 259 paragraph (a) during a 2-year period, the department or the 260 Agency for Workforce Innovation shall order the appropriate 261 agencies to suspend, for at least 30 days, all licenses that are 262 held by the employer and that are necessary to operate the 263 employer’s business at the location at which the unauthorized 264 alien performed work. If a license is not necessary to operate 265 the employer’s business at the specific location at which the 266 unauthorized alien performed work, but a license is necessary to 267 operate the employer’s business in general, the department or 268 the Agency for Workforce Innovation shall order the appropriate 269 agencies to suspend all licenses held by the employer at the 270 employer’s primary place of business. On receipt of the order 271 and notwithstanding any other law, the appropriate agencies 272 shall immediately suspend such licenses for at least 30 days. 273 (l) The Agency for Workforce Innovation shall maintain a 274 public database containing copies of all orders issued pursuant 275 to this section and make such information available on its 276 website. 277 (m) If the department or the Agency for Workforce 278 Innovation determines that an agency or employer has failed to 279 comply with an order under this section, the department or the 280 Agency for Workforce Innovation may apply to the circuit court 281 for a judicial order directing the agency or employer to comply 282 with the order of the department or Agency for Workforce 283 Innovation. 284 (n) For the purposes of this section, compliance with 285 subsection (2) creates a rebuttable presumption that an employer 286 did not knowingly employ an unauthorized alien in violation of 287 paragraph (a). 288 (4) INJUNCTION.—At any time after a complaint is received, 289 an employer subject to a complaint under this section, or any 290 employee of the employer who is alleged to be an unauthorized 291 alien, may challenge and seek to enjoin the enforcement of this 292 section before a court of competent jurisdiction. 293 (5) DECEPTIVE AND UNFAIR TRADE PRACTICE.— 294 (a) An employer commits a deceptive and unfair trade 295 practice in violation of part II of chapter 501, Florida 296 Statutes, if he or she discharges a United States citizen or 297 legal permanent resident alien employee who has applied for 298 naturalization, if, on the date of discharge, an unauthorized 299 alien worker was employed by the employer at the same job site 300 or in the same job classification elsewhere in the state. 301 (b) The discharged employee has a cause of action against 302 the employer for civil penalties and attorney’s fees for the 303 deceptive and unfair trade practice. 304 (c) The wrongfully discharged employee is entitled to 305 reinstatement, back pay, court costs, and attorney’s fees. 306 Criminal or civil sanctions, including fines, shall not be 307 imposed against an employer for a violation of this subsection. 308 (d) A cause of action under this subsection does not exist 309 against an employer who, on the date of discharge, was enrolled 310 and participating in the E-Verify system. 311 (6) CONSTRUCTION.—This section shall be enforced without 312 regard to race or national origin and shall be construed in a 313 manner so as to be fully consistent with any applicable 314 provisions of federal law. 315 Section 2. Section 287.135, Florida Statutes, is created to 316 read: 317 287.135 Verification of immigration status; public 318 employers.— 319 (1) As used in the section, the term: 320 (a) “Contractor” means a person who has entered or is 321 attempting to enter into a public contract for services with a 322 state agency or political subdivision. 323 (b) “E-Verify system” means the system for electronic 324 verification of the work-authorization program of the Illegal 325 Immigration Reform and Immigration Responsibility Act of 1996, 326 Pub. L. No. 104-208, Division C, Title IV, s. 403(a), as 327 amended, and operated by the United States Department of 328 Homeland Security, or a successor work-authorization program 329 designated by the department or other federal agency authorized 330 to verify the work-authorization status of newly hired employees 331 pursuant to the Immigration Reform and Control Act of 1986, Pub. 332 L. No. 99-603. 333 (c) “Public employer” means any department, agency, or 334 political subdivision of the state. 335 (d) “Subcontractor” means any supplier, distributor, 336 vendor, or firm furnishing supplies or services to or for a 337 contractor or another subcontractor. 338 (2)(a) Every public employer shall register with and 339 participate in the E-Verify system for the purpose of verifying 340 the work authorization status of all new employees. 341 (b)1. A public employer may not enter into a contract for 342 the physical performance of services unless the contractor 343 registers and participates in the E-Verify system. 344 2. A contractor or subcontractor may not enter into a 345 contract or subcontract with a public employer in connection 346 with the physical performance of services unless the contractor 347 or subcontractor registers with and uses the E-Verify system for 348 the purpose of verifying information of all new employees 349 employed within the state. 350 (3)(a) If a contractor uses a subcontractor, the 351 subcontractor shall certify to the contractor in a manner that 352 does not violate federal law that the subcontractor, at the time 353 of certification, does not employ or contract with an 354 unauthorized alien. 355 (b) A contractor shall maintain a copy of the certification 356 of a subcontractor throughout the duration of the term of a 357 contract with the subcontractor. 358 (4)(a) If a contractor knows that a subcontractor is in 359 violation of this section, the contractor shall terminate a 360 contract with the subcontractor for the violation. 361 (b) A contract terminated pursuant to paragraph (a) is not 362 a breach of contract and may not be considered as such by the 363 contractor or the subcontractor. 364 (c) A subcontractor may file an action with a circuit or 365 county court having jurisdiction in the county to challenge a 366 termination of a contract under paragraph (a) no later than 20 367 days after the date on which the contractor terminates the 368 contract with the subcontractor. 369 (5)(a) If a public employer knows that a contractor is 370 knowingly in violation of this section, the public employer 371 shall immediately terminate the contract with the contractor and 372 the contractor is not eligible for public contracts for 1 year 373 after the date of termination. If the public employer has 374 knowledge that a subcontractor has violated this section, and 375 the contractor has otherwise complied with this section, the 376 public employer shall promptly notify the contractor and order 377 the contractor to terminate the contract with the noncompliant 378 subcontractor. 379 (b) A contract terminated pursuant to paragraph (a) is not 380 a breach of contract and may not be considered as such by the 381 contractor or subcontractor. 382 (c) A contractor or subcontractor may file an action with a 383 circuit or county court having jurisdiction in the county to 384 challenge a termination of a contract under paragraph (a) no 385 later than 20 days after the date on which the contract or 386 subcontract was terminated. 387 (6) The provisions of this section shall be construed in a 388 manner so as to be fully consistent with any applicable federal 389 law. 390 Section 3. If any provision of this act or its application 391 to any person or circumstance is held invalid, the invalidity 392 does not affect the remaining provisions or applications of the 393 act which can be given effect without the invalid provision or 394 application, and to this end the provisions of this act are 395 severable. 396 Section 4. This act shall take effect July 1, 2011.