Florida Senate - 2020                        COMMITTEE AMENDMENT
       Bill No. CS for CS for SB 664
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       The Committee on Rules (Lee) recommended 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. 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.
  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.
  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.
  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.