Florida Senate - 2020 COMMITTEE AMENDMENT
Bill No. CS for CS for SB 664
Ì885440ÂÎ885440
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/03/2020 .
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The Committee on Rules (Lee) recommended 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. Section 448.093, Florida Statutes, is created to
118 read:
119 448.093 Definitions; use of electronic employment
120 verification system required for private employers; business
121 licensing enforcement.—
122 (1) DEFINITIONS.—As used in this section, the term:
123 (a) “Agency” means an agency, a department, a board, or a
124 commission of this state or a county or municipality which
125 issues a license to operate a business in this state.
126 (b) “Department” means the Department of Economic
127 Opportunity.
128 (c) “Electronic employment verification system” means:
129 1. An Internet-based system operated by the United States
130 Department of Homeland Security (E-Verify) which allows
131 participating employers to electronically verify the employment
132 eligibility of newly hired employees; or
133 2. A system substantially equivalent to E-Verify which
134 verifies whether an employee is an unauthorized alien as
135 certified by an employer, under penalty of perjury, on a form
136 provided by the department.
137 (d) “Employee” means an individual whose work is performed
138 under the direction and supervision of the employer and whose
139 employer withholds tax pursuant to the Federal Insurance
140 Contributions Act (FICA) or federal income tax from the
141 individual’s compensation, or whose employer issues an Internal
142 Revenue Service W-2 form, but not an Internal Revenue Service
143 Form 1099, to an individual for purposes of documenting
144 compensation. The term includes all individuals or entities that
145 do not meet the definition of an independent contractor under
146 federal laws or regulations to perform a specified portion of
147 labor or services.
148 (e) “Employer” means a person or an entity in this state
149 which employs an employee. The term does not include any of the
150 following:
151 1. A government employer.
152 2. The occupant or owner of a private residence who hires:
153 a. Casual labor, as defined in s. 443.036, to be performed
154 entirely within the private residence; or
155 b. A licensed independent contractor, as defined in federal
156 laws or regulations, to perform a specified portion of labor or
157 services.
158 3. An employee leasing company licensed pursuant to part XI
159 of chapter 468 which enters into a written agreement or
160 understanding with a client company which places the primary
161 obligation for compliance with this section upon the client
162 company. In the absence of a written agreement or understanding,
163 the term includes an employee leasing company.
164 (f) “Knowingly employ an unauthorized alien” has the same
165 meaning as in 8 U.S.C. s. 1324a. The term shall be interpreted
166 consistently with 8 U.S.C. s. 1324a and any applicable federal
167 rules or regulations.
168 (g) “License” means a franchise, a permit, a certificate,
169 an approval, a registration, a charter, or any similar form of
170 authorization required by state law and issued by an agency for
171 the purpose of operating a business in this state. The term
172 includes, but is not limited to:
173 1. An article of incorporation.
174 2. A certificate of partnership, a partnership
175 registration, or an article of organization.
176 3. A grant of authority issued pursuant to state or federal
177 law.
178 4. A transaction privilege tax license.
179 (h) “Unauthorized alien” means a person who is not
180 authorized under federal law to be employed in the United
181 States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
182 be interpreted consistently with that section and any applicable
183 federal rules or regulations.
184 (2) VERIFICATION OF EMPLOYMENT ELIGIBILITY; FINE FOR
185 VIOLATION; SUSPENSION OF BUSINESS LICENSE.—
186 (a) An employer shall, after making an offer of employment
187 which has been accepted by an individual, use an electronic
188 employment verification system to verify such individual’s
189 employment eligibility. Verification must occur within the
190 period stipulated by applicable federal rules or regulations.
191 However, an employer is not required to verify the employment
192 eligibility of a continuing employee hired before the date of
193 the employer’s registration with an electronic employment
194 verification system.
195 (b) Employers having at least 50 employees in this state
196 must use an electronic employment verification system or
197 otherwise be in compliance with this section by no later than
198 January 1, 2021.
199 (c) As an alternative to registering with an electronic
200 employment verification system, employers having fewer than 50
201 employees may operate a system that complies with 8 U.S.C. s.
202 1324a, and must also maintain complete copies of all records
203 used to establish an employee’s identity and employment
204 authorization for at least 3 years after the employer receives
205 the records or 1 year after the employee ceases to provide
206 services to the employer, whichever is later.
207 1. Copies of all records maintained by employers pursuant
208 to this paragraph or paragraph (b) must be provided to any state
209 or federal government agency upon request.
210 2. Beginning January 1, 2021, the department may conduct
211 random audits of employment files of those employers that do not
212 register with the E-Verify system.
213 (d) If an employer does not register with an electronic
214 employment verification system or otherwise comply with the
215 requirements of paragraph (c), the department must submit a
216 notice of violation to the employer, who must then register with
217 an electronic employment verification system or otherwise comply
218 with paragraph (c) and provide an affidavit stating such fact to
219 the department within 30 calendar days after the notice of
220 violation is mailed. If the employer does not become compliant
221 and provide the required affidavit within 30 calendar days
222 following the mailing of the notice of violation, the
223 appropriate licensing agency must suspend all applicable
224 licenses held by the employer until the employer becomes
225 compliant and provides the department with the required
226 affidavit.
227 (e) If the department determines that an employer has not
228 registered with an electronic employment verification system or
229 complied with the requirements of paragraph (c), the department
230 may impose a fine of up to $500 per violation of this
231 subsection.
232 (3) EMPLOYMENT OF UNAUTHORIZED ALIENS; IMMUNITY;
233 COMPLAINTS.—
234 (a) An employer may not knowingly employ an unauthorized
235 alien.
236 (b) An employer registered with and using an electronic
237 employment verification system may not be held civilly liable in
238 a cause of action for the employer’s:
239 1. Hiring of an unauthorized alien if the information
240 obtained from the electronic employment verification system
241 indicated that the person’s work authorization status was not
242 that of an unauthorized alien; or
243 2. Refusal to employ a person if the information obtained
244 from the electronic employment verification system indicated
245 that the person’s work authorization status was that of an
246 unauthorized alien.
247 (c) An employer who in good faith registers with and uses
248 an electronic employment verification system is considered to
249 have complied with the requirements of 8 U.S.C. s. 1324a(b) and
250 may not be held liable for any damages and is immune from any
251 legal cause of action brought by any person or entity, including
252 former employees, for the use of and reliance upon any incorrect
253 information obtained from the electronic employment verification
254 system, including any incorrect information obtained as a result
255 of an isolated, sporadic, or accidental technical or procedural
256 failure, when determining final action on a person’s work
257 authorization status.
258 (d) For purposes of this subsection, compliance with
259 subsection (2) creates a rebuttable presumption that an employer
260 did not knowingly employ an unauthorized alien in violation of
261 s. 448.09.
262 (e) A person who has a good faith belief that an employer
263 knowingly employs, or has knowingly employed within the last 90
264 calendar days, an unauthorized alien may file a complaint with
265 the department.
266 1. A complaint may not be based on race, color, or national
267 origin, pursuant to state or federal law.
268 2. A person who knowingly files a false or frivolous
269 complaint under this subsection commits a misdemeanor of the
270 second degree, punishable as provided in s. 775.082 or s.
271 775.083.
272 (f) Upon receipt of a valid complaint substantiated by
273 evidence of a violation of paragraph (a), the department must
274 notify the employer of the complaint and direct the employer to
275 notify any employees named in the complaint. The department
276 shall also determine whether the employer is registered with an
277 electronic employment verification system or otherwise compliant
278 with the requirements of paragraph (2)(c).
279 (g) The department shall request that the Federal
280 Government verify, pursuant to 8 U.S.C. s. 1373(c), the
281 citizenship or immigration status of any employee named in the
282 complaint, and the department must rely upon such verification.
283 The department may not independently make a final determination
284 as to whether an employee is an unauthorized alien.
285 (h) Upon finding that an employer has violated paragraph
286 (a), the department must notify the United States Immigration
287 and Customs Enforcement Agency of the identity of the
288 unauthorized alien and, if known, the physical address at which
289 the unauthorized alien resides.
290 (4) RULEMAKING.—
291 (a) The department shall adopt rules to define an
292 electronic employment verification system, if any, that is
293 substantially equivalent to or more effective than the E-Verify
294 system with respect to identifying unauthorized aliens and those
295 persons eligible to work in the United States. The rules must
296 identify the types of databases, methodologies, and evidence of
297 identity and employment eligibility that qualify an electronic
298 employment verification system as substantially equivalent to or
299 more effective than the E-Verify system.
300 (b) The department may adopt rules to:
301 1. Specify the manner of notifying licensing agencies,
302 pursuant to paragraph (2)(d), of violations by employers;
303 2. Govern the administration of fines authorized under
304 paragraph (2)(e); and
305 3. Provide for procedures for complaints filed pursuant to
306 subsection (3).
307 Section 4. If any provision of this act or its application
308 to any person or circumstance is held invalid, the invalidity
309 does not affect other provisions or applications of the act
310 which can be given effect without the invalid provision or
311 application, and to this end the provisions of this act are
312 severable.
313 Section 5. This act shall take effect July 1, 2020.
314
315 ================= T I T L E A M E N D M E N T ================
316 And the title is amended as follows:
317 Delete everything before the enacting clause
318 and insert:
319 A bill to be entitled
320 An act relating to the verification of employment
321 eligibility; amending s. 287.058, F.S.; requiring
322 written agreements for the procurement of specified
323 contractual services to include a statement regarding
324 the requirement that a contractor or subcontractor
325 register with and use E-Verify; creating s. 287.137,
326 F.S.; defining terms; requiring public employers and
327 certain contractors and subcontractors to register
328 with and use E-Verify by a specified date; prohibiting
329 public employers, contractors, and subcontractors from
330 entering into a contract unless each party to the
331 contract registers with and uses E-Verify; creating s.
332 448.093, F.S.; defining terms; requiring employers who
333 meet specified criteria to register with and use an
334 electronic employment verification system to verify
335 the employment eligibility of new employees; requiring
336 employers who employ more than a specified number of
337 employees to use an electronic employment verification
338 system by a certain date; authorizing certain
339 employers to use an alternative system that meets
340 specified criteria to confirm an employee’s identity,
341 subject to certain requirements; authorizing the
342 Department of Economic Opportunity to conduct random
343 audits of employment files of certain employers;
344 requiring the department to take certain action
345 against a noncompliant employer; requiring the
346 appropriate licensing agency to suspend a noncompliant
347 employer’s license until certain conditions are met;
348 authorizing the imposition of fines for violations of
349 the act; prohibiting an employer from knowingly
350 employing an unauthorized alien; providing civil
351 immunity for an employer registered with and using an
352 employment verification system; providing specified
353 immunity and nonliability for an employer who complies
354 in good faith with the requirements of the act;
355 creating a rebuttable presumption for certain
356 employers that the employer did not knowingly employ
357 an unauthorized alien; authorizing certain persons
358 with knowledge of a violation to file a complaint with
359 the department, subject to certain limitations;
360 providing a penalty for persons who knowingly file
361 false or frivolous complaints; prescribing procedures
362 for the disposition of such complaints; requiring the
363 department to notify the Federal Government of the
364 identity of an unauthorized alien; requiring the
365 department to define by rule employment verification
366 systems substantially equivalent to the E-Verify
367 system; providing requirements for such rules;
368 authorizing the department to adopt additional rules
369 in administering the act; providing for severability;
370 providing an effective date.