Florida Senate - 2020 CS for SB 664 By the Committee on Judiciary; and Senators Lee, Gruters, and Harrell 590-03510A-20 2020664c1 1 A bill to be entitled 2 An act relating to the verification of employment 3 eligibility; creating s. 287.137, F.S.; defining 4 terms; requiring public employers and certain 5 contractors and subcontractors to register with and 6 use an employment verification system by a specified 7 date; prohibiting public employers, contractors, and 8 subcontractors from entering into a contract unless 9 each party to the contract registers with and uses an 10 employment verification system; creating s. 448.093, 11 F.S.; defining terms; requiring employers who meet 12 specified criteria to register with and use an 13 employment verification system to verify the 14 employment eligibility of new employees; prescribing 15 an implementation schedule for the employment 16 verification requirement; authorizing the imposition 17 of fines for violations of the act; requiring a 18 violating employer to submit certain affidavits to the 19 Department of Economic Opportunity; requiring the 20 department to order the appropriate licensing agency 21 to suspend an employer’s license under certain 22 circumstances; providing civil immunity for an 23 employer registered with and using an employment 24 verification system; providing specified immunity and 25 nonliability for an employer who complies in good 26 faith with the requirements of the act; creating a 27 rebuttable presumption for certain employers that the 28 employer did not knowingly employ an unauthorized 29 alien; requiring the department to define by rule 30 employment verification systems substantially 31 equivalent to the E-Verify system; providing 32 requirements for such rules; providing an effective 33 date. 34 35 Be It Enacted by the Legislature of the State of Florida: 36 37 Section 1. Section 287.137, Florida Statutes, is created to 38 read: 39 287.137 Verification of work authorization status; public 40 employers.— 41 (1) As used in this section, the term: 42 (a) “Contractor” means a person or an entity that has more 43 than 10 employees and has entered into, or is attempting to 44 enter into, a contract with a public employer to provide labor, 45 supplies, or services to such employer. 46 (b) “Employee” has the same meaning as provided in s. 47 448.093. 48 (c) “Employment verification system” has the same meaning 49 as provided in s. 448.093. 50 (d) “Public employer” means a department, an agency, or a 51 political subdivision of this state which enters into, or 52 attempts to enter into, a contract with a contractor for an 53 amount that will, or is expected to, exceed the CATEGORY FOUR 54 threshold amount provided in s. 287.017. 55 (e) “Subcontractor” means a person or an entity that has 56 more than 10 employees and provides labor, supplies, or services 57 to or for a contractor or another subcontractor pursuant to a 58 contract that will, or is expected to, exceed the CATEGORY THREE 59 threshold amount provided in s. 287.017. 60 (f) “Unauthorized alien” means a person who is not 61 authorized under federal law to be employed in the United 62 States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall 63 be interpreted consistently with that section and any applicable 64 federal rules or regulations. 65 (2) On or after July 1, 2022: 66 (a) Every public employer, contractor, and subcontractor 67 shall register with and use an employment verification system to 68 verify the work authorization status of all new employees and 69 identify whether an employee is an unauthorized alien. 70 (b) A public employer or a contractor or subcontractor in 71 this state may not enter into a contract under this section 72 unless each party to the contract registers with and uses an 73 employment verification system. 74 Section 2. Section 448.093, Florida Statutes, is created to 75 read: 76 448.093 Definitions; use of employment verification system 77 required for private employers; business licensing enforcement.— 78 (1) DEFINITIONS.—As used in this section, the term: 79 (a) “Agency” means an agency, a department, a board, or a 80 commission of this state or a county, municipality, or town 81 issuing a license to operate a business in this state. 82 (b) “Department” means the Department of Economic 83 Opportunity. 84 (c) “Employee” means an individual whose work is performed 85 under the direction and supervision of the employer and whose 86 employer withholds tax pursuant to the Federal Insurance 87 Contributions Act (FICA) or federal income tax from the 88 individual’s compensation, or whose employer issues an Internal 89 Revenue Service W-2 form, but not an Internal Revenue Service 90 Form 1099, to an individual for purposes of documenting 91 compensation. The term does not include a licensed independent 92 contractor as defined in federal laws or regulations. 93 (d) “Employer” means a person or an entity in this state 94 which employs an employee. The term does not include: 95 1. A government employer. 96 2. The occupant or owner of a private residence who hires: 97 a. Casual labor, as defined in s. 443.036, to be performed 98 entirely within the private residence; or 99 b. A licensed independent contractor, as defined in federal 100 laws or regulations, to perform a specified portion of labor or 101 services. 102 3. An agricultural employer, which includes any person who 103 owns or operates a farm, ranch, processing establishment, 104 cannery, gin, packing shed, or nursery, or who produces or 105 conditions seed, and who either recruits, solicits, hires, 106 employs, furnishes, or transports any migrant or seasonal 107 agricultural worker. This subparagraph is repealed 90 days after 108 the effective date of any federal law, rule, regulation, or 109 program that authorizes this state or a federal agency to grant 110 temporary legal status to an unauthorized alien who can 111 demonstrate that he or she has performed agricultural work in 112 the United States for not fewer than 575 hours or 100 work days 113 during a 2-year period and has maintained a continuous presence 114 in the United States, except for brief absences, during that 115 period. 116 4. An employee leasing company licensed pursuant to part XI 117 of chapter 468 which enters into a written agreement or 118 understanding with a client company which places the primary 119 obligation for compliance with this section upon the client 120 company. In the absence of a written agreement or understanding, 121 the term includes an employee leasing company. 122 (e) “Employment verification system” means: 123 1. An Internet-based system operated by the United States 124 Department of Homeland Security which allows participating 125 employers to electronically verify the employment eligibility of 126 newly hired employees; or 127 2. A substantially equivalent electronic employment 128 verification system that is permissible under department rule. 129 (f) “Knowingly employ an unauthorized alien” has the same 130 meaning as in 8 U.S.C. s. 1324a. The term shall be interpreted 131 consistently with 8 U.S.C. s. 1324a and any applicable federal 132 rules or regulations. 133 (g) “License” means a franchise, a permit, a certificate, 134 an approval, a registration, a charter, or any similar form of 135 authorization required by state law and issued by an agency for 136 the purpose of operating a business in this state. The term 137 includes, but is not limited to: 138 1. An article of incorporation. 139 2. A certificate of partnership, a partnership 140 registration, or an article of organization. 141 3. A grant of authority issued pursuant to state or federal 142 law. 143 4. A transaction privilege tax license. 144 (h) “Unauthorized alien” means a person who is not 145 authorized under federal law to be employed in the United 146 States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall 147 be interpreted consistently with that section and any applicable 148 federal rules or regulations. 149 (2) VERIFICATION OF EMPLOYMENT ELIGIBILITY; FINE FOR 150 VIOLATION; SUSPENSION OF BUSINESS LICENSE.— 151 (a) An employer shall, after making an offer of employment 152 which has been accepted by a person, use an employment 153 verification system to verify such person’s employment 154 eligibility. Verification must occur within the period 155 stipulated by applicable federal rules or regulations. However, 156 an employer is not required to verify the employment eligibility 157 of a continuing employee hired before the date of the employer’s 158 registration with an employment verification system. 159 (b) The requirement to use an employment verification 160 system shall be phased in as follows: 161 1. Employers having at least 500 employees must use an 162 employment verification system beginning January 1, 2021. 163 2. Employers having at least 250 employees must use an 164 employment verification system beginning July 1, 2021. 165 3. Employers having at least 150 employees must use an 166 employment verification system beginning January 1, 2022. 167 4. Employers having more than 10 employees must use an 168 employment verification system 90 days after the effective date 169 of any federal law, rule, regulation, or program that authorizes 170 this state to issue a work permit, whether temporary or 171 permanent, to a qualifying undocumented alien. 172 (c) If an employer does not register with an employment 173 verification system, the department may impose a fine of up to 174 $500 on the employer, who must then register with an employment 175 verification system and provide an affidavit of stating such 176 fact to the department within 30 days. If the employer does not 177 register with and provide the required affidavit within 30 days 178 after the imposition of the fine becomes final, the department 179 must order the appropriate agency to suspend all applicable 180 licenses held by the employer until the employer registers with 181 an employment verification system and provides the department 182 with the required affidavit. 183 (3) EMPLOYMENT OF UNAUTHORIZED ALIENS; IMMUNITY.— 184 (a)1. An employer registered with and using an employment 185 verification system may not be held civilly liable in a cause of 186 action for the employer’s: 187 a. Hiring of an unauthorized alien if the information 188 obtained from the employment verification system indicated that 189 the person’s work authorization status was not that of an 190 unauthorized alien; or 191 b. Refusal to hire a person if the information obtained 192 from the employment verification system indicated that the 193 person’s work authorization status was that of an unauthorized 194 alien. 195 2. An employer who in good faith registers with and uses an 196 employment verification system is considered to have complied 197 with the requirements of 8 U.S.C. s. 1324a(b) and may not be 198 held liable for any damages and is immune from any legal cause 199 of action brought by any person or entity, including former 200 employees, for the use of and reliance upon any incorrect 201 information obtained from the employment verification system, 202 including any incorrect information obtained as a result of an 203 isolated, sporadic, or accidental technical or procedural 204 failure, when determining final action on a person’s work 205 authorization status. 206 (b) For purposes of this subsection, compliance with 207 subsection (2) creates a rebuttable presumption that an employer 208 did not knowingly employ an unauthorized alien in violation of 209 s. 448.09. 210 (4) RULEMAKING.—The department shall adopt rules to define 211 an employment verification system, if any, that is substantially 212 equivalent to or more effective than the E-Verify system with 213 respect to identifying unauthorized aliens and those persons 214 eligible to work in the United States. The rules must identify 215 the types of databases, methodologies, and evidence of identity 216 and employment eligibility that qualify an employment 217 verification system as substantially equivalent to or more 218 effective than the E-Verify system. 219 Section 3. This act shall take effect July 1, 2020.