Florida Senate - 2020 COMMITTEE AMENDMENT Bill No. CS for CS for SB 664 Ì885440ÂÎ885440 LEGISLATIVE ACTION Senate . House . . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— 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.