Florida Senate - 2020                          SENATOR AMENDMENT
       Bill No. CS for CS for CS for SB 664
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                Floor: 1/AD/2R         .                                
             03/06/2020 05:51 PM       .                                

       Senator Lee moved the following:
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (1) of section 287.058, Florida
    6  Statutes, is amended to read:
    7         287.058 Contract document.—
    8         (1) Every procurement of contractual services in excess of
    9  the threshold amount provided in s. 287.017 for CATEGORY TWO,
   10  except for the providing of health and mental health services or
   11  drugs in the examination, diagnosis, or treatment of sick or
   12  injured state employees or the providing of other benefits as
   13  required by chapter 440, shall be evidenced by a written
   14  agreement embodying all provisions and conditions of the
   15  procurement of such services, which shall, where applicable,
   16  include, but not be limited to, a provision:
   17         (a) That bills for fees or other compensation for services
   18  or expenses be submitted in detail sufficient for a proper
   19  preaudit and postaudit thereof.
   20         (b) That bills for any travel expenses be submitted in
   21  accordance with s. 112.061. A state agency may establish rates
   22  lower than the maximum provided in s. 112.061.
   23         (c) Allowing unilateral cancellation by the agency for
   24  refusal by the contractor to allow public access to all
   25  documents, papers, letters, or other material made or received
   26  by the contractor in conjunction with the contract, unless the
   27  records are exempt from s. 24(a) of Art. I of the State
   28  Constitution and s. 119.07(1).
   29         (d) Specifying a scope of work that clearly establishes all
   30  tasks the contractor is required to perform.
   31         (e) Dividing the contract into quantifiable, measurable,
   32  and verifiable units of deliverables that must be received and
   33  accepted in writing by the contract manager before payment. Each
   34  deliverable must be directly related to the scope of work and
   35  specify a performance measure. As used in this paragraph, the
   36  term “performance measure” means the required minimum acceptable
   37  level of service to be performed and criteria for evaluating the
   38  successful completion of each deliverable.
   39         (f) Specifying the criteria and the final date by which
   40  such criteria must be met for completion of the contract.
   41         (g) Specifying that the contract may be renewed for a
   42  period that may not exceed 3 years or the term of the original
   43  contract, whichever is longer, specifying the renewal price for
   44  the contractual service as set forth in the bid, proposal, or
   45  reply, specifying that costs for the renewal may not be charged,
   46  and specifying that renewals are contingent upon satisfactory
   47  performance evaluations by the agency and subject to the
   48  availability of funds. Exceptional purchase contracts pursuant
   49  to s. 287.057(3)(a) and (c) may not be renewed.
   50         (h) Specifying the financial consequences that the agency
   51  must apply if the contractor fails to perform in accordance with
   52  the contract.
   53         (i) Addressing the property rights of any intellectual
   54  property related to the contract and the specific rights of the
   55  state regarding the intellectual property if the contractor
   56  fails to provide the services or is no longer providing
   57  services.
   58         (j) Requiring a contractor or any subcontractor performing
   59  a portion of the contract to register with and use E-Verify to
   60  the extent required by s. 287.137 for all new employees hired in
   61  this state during the term of the contract.
   63  In lieu of a written agreement, the agency may authorize the use
   64  of a purchase order for classes of contractual services if the
   65  provisions of paragraphs (a)-(j) (a)-(i) are included in the
   66  purchase order or solicitation. The purchase order must include,
   67  but need not be limited to, an adequate description of the
   68  services, the contract period, and the method of payment. In
   69  lieu of printing the provisions of paragraphs (a)-(c) and (g) in
   70  the contract document or purchase order, agencies may
   71  incorporate the requirements of paragraphs (a)-(c) and (g) by
   72  reference.
   73         Section 2. Section 287.137, Florida Statutes, is created to
   74  read:
   75         287.137 Verification of work authorization status; public
   76  employers.—
   77         (1) As used in this section, the term:
   78         (a) “Contractor” means a person or an entity that has more
   79  than 10 employees in this state and has entered into, or is
   80  attempting to enter into, a contract with a public employer to
   81  provide labor, supplies, or services to such employer.
   82         (b) “Employee” has the same meaning as provided in s.
   83  448.093.
   84         (c) “E-Verify” means the Internet-based electronic
   85  employment verification system operated by the United States
   86  Department of Homeland Security.
   87         (d) “Public employer” means an agency or a subdivision of
   88  the state, regional, county, local, special district, or
   89  municipal government, whether executive, judicial, or
   90  legislative, or any public school, community college, or state
   91  university, which employs persons who perform labor or services
   92  for that employer in exchange for salary, wages, or other
   93  remuneration or enters into, or attempts to enter into, a
   94  contract with a contractor for an amount that will, or is
   95  expected to, exceed the CATEGORY TWO threshold amount provided
   96  in s. 287.017.
   97         (e) “Subcontractor” means a person or an entity that has
   98  more than 10 employees in this state and provides labor,
   99  supplies, or services to or for a contractor or another
  100  subcontractor pursuant to a contract that will, or is expected
  101  to, exceed the CATEGORY TWO threshold amount provided in s.
  102  287.017.
  103         (f) “Unauthorized alien” means a person who is not
  104  authorized under federal law to be employed in the United
  105  States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
  106  be interpreted consistently with that section and any applicable
  107  federal rules or regulations.
  108         (2) On or after July 1, 2021:
  109         (a) Every public employer, contractor, and subcontractor
  110  shall register with and use E-Verify to verify the work
  111  authorization status of all new employees and identify whether
  112  an employee is an unauthorized alien.
  113         (b) A public employer or a contractor or subcontractor in
  114  this state may not enter into a contract under this section
  115  unless each party to the contract registers with and uses E
  116  Verify.
  117         Section 3. Present subsection (6) of section 288.061,
  118  Florida Statutes, is renumbered as subsection (7), and a new
  119  subsection (6) is added to that section to read:
  120         288.061 Economic development incentive application
  121  process.—
  122         (6)Beginning July 1, 2020, the executive director may not
  123  approve an economic development incentive application unless the
  124  application includes proof to the department that the applicant
  125  business will register with and use the E-Verify system, as
  126  defined in s. 287.137, or an alternative electronic employment
  127  verification system approved by the department, to verify the
  128  work authorization status of all newly hired employees. If the
  129  department determines that an awardee is not complying with this
  130  subsection, the department must notify the awardee by certified
  131  mail of the department’s determination of noncompliance and the
  132  awardee’s right to appeal the determination. Upon a final
  133  determination of noncompliance, the awardee must repay all
  134  moneys received as an economic development incentive to the
  135  department within 30 days after the final determination.
  136         Section 4. Section 448.093, Florida Statutes, is created to
  137  read:
  138         448.093 Definitions; use of electronic employment
  139  verification system required for private employers; business
  140  licensing enforcement.—
  141         (1) DEFINITIONS.—As used in this section, the term:
  142         (a) “Agency” means an agency, a department, a board, or a
  143  commission of this state or a county or municipality which
  144  issues a license to operate a business in this state.
  145         (b) “Department” means the Department of Economic
  146  Opportunity.
  147         (c) “Electronic employment verification system” means:
  148         1. An Internet-based system operated by the United States
  149  Department of Homeland Security (E-Verify) which allows
  150  participating employers to electronically verify the employment
  151  eligibility of newly hired employees; or
  152         2. A system substantially equivalent to E-Verify which
  153  verifies whether an employee is an unauthorized alien as
  154  certified by an employer, under penalty of perjury, on a form
  155  provided by the department.
  156         (d) “Employee” means an individual whose work is performed
  157  under the direction and supervision of the employer and whose
  158  employer withholds tax pursuant to the Federal Insurance
  159  Contributions Act (FICA) or federal income tax from the
  160  individual’s compensation, or whose employer issues an Internal
  161  Revenue Service W-2 form, but not an Internal Revenue Service
  162  Form 1099, to an individual for purposes of documenting
  163  compensation. The term includes all individuals or entities that
  164  do not meet the definition of an independent contractor under
  165  federal laws or regulations to perform a specified portion of
  166  labor or services.
  167         (e) “Employer” means a person or an entity in this state
  168  which employs an employee. The term does not include any of the
  169  following:
  170         1. A government employer.
  171         2. The occupant or owner of a private residence who hires:
  172         a. Casual labor, as defined in s. 443.036, to be performed
  173  entirely within the private residence; or
  174         b. A licensed independent contractor, as defined in federal
  175  laws or regulations, to perform a specified portion of labor or
  176  services.
  177         3. An employee leasing company licensed pursuant to part XI
  178  of chapter 468 which enters into a written agreement or
  179  understanding with a client company which places the primary
  180  obligation for compliance with this section upon the client
  181  company. In the absence of a written agreement or understanding,
  182  the term includes an employee leasing company.
  183         (f) “Knowingly employ an unauthorized alien” has the same
  184  meaning as in 8 U.S.C. s. 1324a. The term shall be interpreted
  185  consistently with 8 U.S.C. s. 1324a and any applicable federal
  186  rules or regulations.
  187         (g) “License” means a franchise, a permit, a certificate,
  188  an approval, a registration, a charter, or any similar form of
  189  authorization required by state law and issued by an agency for
  190  the purpose of operating a business in this state. The term
  191  includes, but is not limited to:
  192         1. An article of incorporation.
  193         2. A certificate of partnership, a partnership
  194  registration, or an article of organization.
  195         3. A grant of authority issued pursuant to state or federal
  196  law.
  197         4. A transaction privilege tax license.
  198         (h) “Unauthorized alien” means a person who is not
  199  authorized under federal law to be employed in the United
  200  States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
  201  be interpreted consistently with that section and any applicable
  202  federal rules or regulations.
  205         (a) An employer shall, after making an offer of employment
  206  which has been accepted by an individual, use an electronic
  207  employment verification system to verify such individual’s
  208  employment eligibility. Verification must occur within the
  209  period stipulated by applicable federal rules or regulations.
  210  However, an employer is not required to verify the employment
  211  eligibility of a continuing employee hired before the date of
  212  the employer’s registration with an electronic employment
  213  verification system.
  214         (b) Employers in this state must use an electronic
  215  employment verification system or otherwise be in compliance
  216  with this section by no later than January 1, 2021.
  217         (c) As an alternative to registering with an electronic
  218  employment verification system, an employer may operate a system
  219  that complies with 8 U.S.C. s. 1324a, and must also maintain
  220  complete copies of all records used to establish an employee’s
  221  identity and employment authorization for at least 3 years after
  222  the employer receives the records or 1 year after the employee
  223  ceases to provide services to the employer, whichever is later.
  224         1. Copies of all records maintained by employers pursuant
  225  to this paragraph or paragraph (b) must be provided to any state
  226  or federal government agency upon request.
  227         2. Beginning January 1, 2021, the department may conduct
  228  random audits of employment files of those employers that do not
  229  register with the E-Verify system.
  230         (d)1. If an employer does not register with an electronic
  231  employment verification system or otherwise comply with the
  232  requirements of paragraph (c), the department must submit a
  233  notice of violation to the employer, who must then register with
  234  an electronic employment verification system or otherwise comply
  235  with paragraph (c) and provide an affidavit stating such fact to
  236  the department within 30 calendar days after the notice of
  237  violation is mailed. If the employer does not become compliant
  238  and provide the required affidavit within 30 calendar days
  239  following the mailing of the notice of violation, the
  240  appropriate licensing agency must suspend all applicable
  241  licenses held by the employer until the employer becomes
  242  compliant and provides the department with the required
  243  affidavit.
  244         2. For any employer found to have violated this subsection
  245  three times within any 36 month period, the appropriate agency
  246  shall permanently revoke all licenses that are held by the
  247  private employer specific to the business location where the
  248  unauthorized alien performed work. If the employer does not hold
  249  a license specific to the business location where the
  250  unauthorized alien performed work, but a license is necessary to
  251  operate the private employer’s business in general, the
  252  appropriate licensing agency shall permanently revoke all
  253  licenses that are held by the employer at the employer’s primary
  254  place of business.
  255         3.For purposes of this paragraph, any licenses that are
  256  subject to suspension or revocation under subparagraph 1. or
  257  subparagraph 2., respectively, are all licenses that are held by
  258  the employer specific to the business location where the
  259  unauthorized alien performed work.
  260         (e) If the department determines that an employer has not
  261  registered with an electronic employment verification system or
  262  complied with the requirements of paragraph (c), the department
  263  may impose a fine of up to $500 per violation of this
  264  subsection.
  267         (a) An employer may not knowingly employ an unauthorized
  268  alien.
  269         (b) An employer registered with and using an electronic
  270  employment verification system may not be held civilly liable in
  271  a cause of action for the employer’s:
  272         1. Hiring of an unauthorized alien if the information
  273  obtained from the electronic employment verification system
  274  indicated that the person’s work authorization status was not
  275  that of an unauthorized alien; or
  276         2. Refusal to employ a person if the information obtained
  277  from the electronic employment verification system indicated
  278  that the person’s work authorization status was that of an
  279  unauthorized alien.
  280         (c) An employer who in good faith registers with and uses
  281  an electronic employment verification system is considered to
  282  have complied with the requirements of 8 U.S.C. s. 1324a(b) and
  283  may not be held liable for any damages and is immune from any
  284  legal cause of action brought by any person or entity, including
  285  former employees, for the use of and reliance upon any incorrect
  286  information obtained from the electronic employment verification
  287  system, including any incorrect information obtained as a result
  288  of an isolated, sporadic, or accidental technical or procedural
  289  failure, when determining final action on a person’s work
  290  authorization status.
  291         (d) For purposes of this subsection, compliance with
  292  subsection (2) creates a rebuttable presumption that an employer
  293  did not knowingly employ an unauthorized alien in violation of
  294  s. 448.09.
  295         (e) A person who has a good faith belief that an employer
  296  knowingly employs, or has knowingly employed within the last 90
  297  calendar days, an unauthorized alien may file a complaint with
  298  the department.
  299         1. A complaint may not be based on race, color, or national
  300  origin, pursuant to state or federal law.
  301         2. A person who knowingly files a false or frivolous
  302  complaint under this subsection commits a misdemeanor of the
  303  second degree, punishable as provided in s. 775.082 or s.
  304  775.083.
  305         (f) Upon receipt of a valid complaint substantiated by
  306  evidence of a violation of paragraph (a), the department must
  307  notify the employer of the complaint and direct the employer to
  308  notify any employees named in the complaint. The department
  309  shall also determine whether the employer is registered with an
  310  electronic employment verification system or otherwise compliant
  311  with the requirements of paragraph (2)(c).
  312         (g) The department shall request that the Federal
  313  Government verify, pursuant to 8 U.S.C. s. 1373(c), the
  314  citizenship or immigration status of any employee named in the
  315  complaint, and the department must rely upon such verification.
  316  The department may not independently make a final determination
  317  as to whether an employee is an unauthorized alien.
  318         (h) Upon finding that an employer has violated paragraph
  319  (a), the department must notify the United States Immigration
  320  and Customs Enforcement Agency of the identity of the
  321  unauthorized alien and, if known, the physical address at which
  322  the unauthorized alien resides.
  323         (4) ENFORCEMENT.—
  324         (a) For purposes of enforcing this section, the following
  325  persons or entities may request, and an employer must provide,
  326  copies of any documentation relied upon by the employer for the
  327  verification of a person’s employment eligibility, including,
  328  but not limited to, any documentation required under this
  329  section.
  330         1. The Department of Law Enforcement.
  331         2. The Attorney General.
  332         3. A state attorney.
  333         4. The statewide prosecutor.
  334         (b) A person or an entity specified in paragraph (a) that
  335  makes a request pursuant to this subsection must rely upon the
  336  Federal Government to verify a person’s employment eligibility
  337  and may not independently make a final determination as to
  338  whether a person is an unauthorized alien.
  339         (5) RULEMAKING.—
  340         (a) The department shall adopt rules to define an
  341  electronic employment verification system, if any, that is
  342  substantially equivalent to or more effective than the E-Verify
  343  system with respect to identifying unauthorized aliens and those
  344  persons eligible to work in the United States. The rules must
  345  identify the types of databases, methodologies, and evidence of
  346  identity and employment eligibility that qualify an electronic
  347  employment verification system as substantially equivalent to or
  348  more effective than the E-Verify system.
  349         (b) The department may adopt rules to:
  350         1. Specify the manner of notifying licensing agencies,
  351  pursuant to paragraph (2)(d), of violations by employers;
  352         2. Govern the administration of fines authorized under
  353  paragraph (2)(e); and
  354         3. Provide for procedures for complaints filed pursuant to
  355  subsection (3).
  356         (6) CONSTRUCTION.—This section shall be enforced without
  357  regard to race, color, or national origin, and shall be enforced
  358  in a manner that is fully consistent with any applicable federal
  359  laws or regulations.
  360         Section 5. For the 2020-2021 fiscal year, the sum of
  361  $1,612,045 in recurring funds and the sum of $1,019,600 in
  362  nonrecurring funds from the General Revenue Fund are
  363  appropriated to the Department of Economic Opportunity, and 15
  364  full-time equivalent positions with associated salary rate of
  365  681,500 are authorized, for purposes of implementing this act.
  366         Section 6. If any provision of this act or its application
  367  to any person or circumstance is held invalid, the invalidity
  368  does not affect other provisions or applications of the act
  369  which can be given effect without the invalid provision or
  370  application, and to this end the provisions of this act are
  371  severable.
  372         Section 7. This act shall take effect July 1, 2020.
  374  ================= T I T L E  A M E N D M E N T ================
  375  And the title is amended as follows:
  376         Delete everything before the enacting clause
  377  and insert:
  378                        A bill to be entitled                      
  379         An act relating to the verification of employment
  380         eligibility; amending s. 287.058, F.S.; requiring
  381         written agreements for the procurement of specified
  382         contractual services to include a statement regarding
  383         the requirement that a contractor or subcontractor
  384         register with and use E-Verify; creating s. 287.137,
  385         F.S.; defining terms; requiring public employers and
  386         certain contractors and subcontractors to register
  387         with and use E-Verify by a specified date; prohibiting
  388         public employers, contractors, and subcontractors from
  389         entering into a contract unless each party to the
  390         contract registers with and uses E-Verify; amending s.
  391         288.061, F.S.; prohibiting the approval of certain
  392         economic development incentive applications after a
  393         specified date; requiring an awardee to repay certain
  394         moneys within a specified timeframe under certain
  395         circumstances; creating s. 448.093, F.S.; defining
  396         terms; requiring employers to register with and use an
  397         electronic employment verification system to verify
  398         the employment eligibility of new employees by a
  399         certain date; authorizing employers to use an
  400         alternative system that meets specified criteria to
  401         confirm an employee’s identity, subject to certain
  402         requirements; authorizing the Department of Economic
  403         Opportunity to conduct random audits of employment
  404         files of certain employers; requiring the department
  405         to take certain action against a noncompliant
  406         employer; requiring the appropriate licensing agency
  407         to suspend a noncompliant employer’s license until
  408         certain conditions are met; requiring permanent
  409         revocation of licenses under specified circumstances;
  410         authorizing the imposition of fines for violations of
  411         the act; prohibiting an employer from knowingly
  412         employing an unauthorized alien; providing civil
  413         immunity for an employer registered with and using an
  414         electronic employment verification system; providing
  415         specified immunity and nonliability for an employer
  416         who complies in good faith with the requirements of
  417         the act; creating a rebuttable presumption for certain
  418         employers that the employer did not knowingly employ
  419         an unauthorized alien; authorizing certain persons
  420         with knowledge of a violation to file a complaint with
  421         the department, subject to certain limitations;
  422         providing a penalty for persons who knowingly file
  423         false or frivolous complaints; prescribing procedures
  424         for the disposition of such complaints; requiring the
  425         department to notify the Federal Government of the
  426         identity of an unauthorized alien; requiring employers
  427         to provide copies of certain documentation, upon
  428         request, to specified persons and governmental
  429         entities for certain purposes; prohibiting specified
  430         persons and entities from making a determination as to
  431         whether a person is an unauthorized alien; requiring
  432         the department to define by rule electronic employment
  433         verification systems substantially equivalent to the
  434         E-Verify system; providing requirements for such
  435         rules; authorizing the department to adopt additional
  436         rules in administering the act; providing for
  437         construction; providing appropriations and authorizing
  438         positions; providing for severability; providing an
  439         effective date.