Florida Senate - 2020 SENATOR AMENDMENT Bill No. CS for CS for CS for SB 664 Ì468060ÆÎ468060 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) 2 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. 62 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. 203 (2) VERIFICATION OF EMPLOYMENT ELIGIBILITY; FINE FOR 204 VIOLATION; SUSPENSION OF BUSINESS LICENSE.— 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. 265 (3) EMPLOYMENT OF UNAUTHORIZED ALIENS; IMMUNITY; 266 COMPLAINTS.— 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. 373 374 ================= 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.