Florida Senate - 2020                       CS for CS for SB 664
       By the Committees on Commerce and Tourism; and Judiciary; and
       Senators Lee, Gruters, Harrell, and Simmons
       577-03847A-20                                          2020664c2
    1                        A bill to be entitled                      
    2         An act relating to the verification of employment
    3         eligibility; amending s. 287.058, F.S.; requiring
    4         written agreements for the procurement of specified
    5         contractual services to include a statement regarding
    6         the requirement that a contractor or subcontractor
    7         register with and use an employment verification
    8         system; creating s. 287.137, F.S.; defining terms;
    9         requiring public employers and certain contractors and
   10         subcontractors to register with and use an employment
   11         verification system by a specified date; prohibiting
   12         public employers, contractors, and subcontractors from
   13         entering into a contract unless each party to the
   14         contract registers with and uses an employment
   15         verification system; creating s. 448.093, F.S.;
   16         defining terms; requiring employers who meet specified
   17         criteria to register with and use an employment
   18         verification system to verify the employment
   19         eligibility of new employees; prescribing an
   20         implementation schedule for the employment
   21         verification requirement; authorizing the imposition
   22         of fines for violations of the act; requiring a
   23         violating employer to submit certain affidavits to the
   24         Department of Economic Opportunity; requiring the
   25         department to order the appropriate licensing agency
   26         to suspend an employer’s license under certain
   27         circumstances; providing civil immunity for an
   28         employer registered with and using an employment
   29         verification system; providing specified immunity and
   30         nonliability for an employer who complies in good
   31         faith with the requirements of the act; creating a
   32         rebuttable presumption for certain employers that the
   33         employer did not knowingly employ an unauthorized
   34         alien; requiring the department to define by rule
   35         employment verification systems substantially
   36         equivalent to the E-Verify system; providing
   37         requirements for such rules; providing an effective
   38         date.
   40  Be It Enacted by the Legislature of the State of Florida:
   42         Section 1. Subsection (1) of section 287.058, Florida
   43  Statutes, is amended to read:
   44         287.058 Contract document.—
   45         (1) Every procurement of contractual services in excess of
   46  the threshold amount provided in s. 287.017 for CATEGORY TWO,
   47  except for the providing of health and mental health services or
   48  drugs in the examination, diagnosis, or treatment of sick or
   49  injured state employees or the providing of other benefits as
   50  required by chapter 440, shall be evidenced by a written
   51  agreement embodying all provisions and conditions of the
   52  procurement of such services, which shall, where applicable,
   53  include, but not be limited to, a provision:
   54         (a) That bills for fees or other compensation for services
   55  or expenses be submitted in detail sufficient for a proper
   56  preaudit and postaudit thereof.
   57         (b) That bills for any travel expenses be submitted in
   58  accordance with s. 112.061. A state agency may establish rates
   59  lower than the maximum provided in s. 112.061.
   60         (c) Allowing unilateral cancellation by the agency for
   61  refusal by the contractor to allow public access to all
   62  documents, papers, letters, or other material made or received
   63  by the contractor in conjunction with the contract, unless the
   64  records are exempt from s. 24(a) of Art. I of the State
   65  Constitution and s. 119.07(1).
   66         (d) Specifying a scope of work that clearly establishes all
   67  tasks the contractor is required to perform.
   68         (e) Dividing the contract into quantifiable, measurable,
   69  and verifiable units of deliverables that must be received and
   70  accepted in writing by the contract manager before payment. Each
   71  deliverable must be directly related to the scope of work and
   72  specify a performance measure. As used in this paragraph, the
   73  term “performance measure” means the required minimum acceptable
   74  level of service to be performed and criteria for evaluating the
   75  successful completion of each deliverable.
   76         (f) Specifying the criteria and the final date by which
   77  such criteria must be met for completion of the contract.
   78         (g) Specifying that the contract may be renewed for a
   79  period that may not exceed 3 years or the term of the original
   80  contract, whichever is longer, specifying the renewal price for
   81  the contractual service as set forth in the bid, proposal, or
   82  reply, specifying that costs for the renewal may not be charged,
   83  and specifying that renewals are contingent upon satisfactory
   84  performance evaluations by the agency and subject to the
   85  availability of funds. Exceptional purchase contracts pursuant
   86  to s. 287.057(3)(a) and (c) may not be renewed.
   87         (h) Specifying the financial consequences that the agency
   88  must apply if the contractor fails to perform in accordance with
   89  the contract.
   90         (i) Addressing the property rights of any intellectual
   91  property related to the contract and the specific rights of the
   92  state regarding the intellectual property if the contractor
   93  fails to provide the services or is no longer providing
   94  services.
   95         (j) Requiring a contractor or any subcontractor performing
   96  a portion of the contract to register with and use an employment
   97  verification system to the extent required by s. 287.137 for all
   98  new employees hired in this state during the term of the
   99  contract.
  101  In lieu of a written agreement, the agency may authorize the use
  102  of a purchase order for classes of contractual services if the
  103  provisions of paragraphs (a)-(j) (a)-(i) are included in the
  104  purchase order or solicitation. The purchase order must include,
  105  but need not be limited to, an adequate description of the
  106  services, the contract period, and the method of payment. In
  107  lieu of printing the provisions of paragraphs (a)-(c) and (g) in
  108  the contract document or purchase order, agencies may
  109  incorporate the requirements of paragraphs (a)-(c) and (g) by
  110  reference.
  111         Section 2. Section 287.137, Florida Statutes, is created to
  112  read:
  113         287.137 Verification of work authorization status; public
  114  employers.—
  115         (1) As used in this section, the term:
  116         (a) “Contractor” means a person or an entity that has more
  117  than 10 employees in this state and has entered into, or is
  118  attempting to enter into, a contract with a public employer to
  119  provide labor, supplies, or services to such employer.
  120         (b) “Employee” has the same meaning as provided in s.
  121  448.093.
  122         (c) “Employment verification system” has the same meaning
  123  as provided in s. 448.093.
  124         (d) “Public employer” means a department, an agency, or a
  125  political subdivision of this state which enters into, or
  126  attempts to enter into, a contract with a contractor for an
  127  amount that will, or is expected to, exceed the CATEGORY TWO
  128  threshold amount provided in s. 287.017.
  129         (e) “Subcontractor” means a person or an entity that has
  130  more than 10 employees in this state and provides labor,
  131  supplies, or services to or for a contractor or another
  132  subcontractor pursuant to a contract that will, or is expected
  133  to, exceed the CATEGORY TWO threshold amount provided in s.
  134  287.017.
  135         (f) “Unauthorized alien” means a person who is not
  136  authorized under federal law to be employed in the United
  137  States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
  138  be interpreted consistently with that section and any applicable
  139  federal rules or regulations.
  140         (2) On or after July 1, 2021:
  141         (a) Every public employer, contractor, and subcontractor
  142  shall register with and use an employment verification system to
  143  verify the work authorization status of all new employees and
  144  identify whether an employee is an unauthorized alien.
  145         (b) A public employer or a contractor or subcontractor in
  146  this state may not enter into a contract under this section
  147  unless each party to the contract registers with and uses an
  148  employment verification system.
  149         Section 3. Section 448.093, Florida Statutes, is created to
  150  read:
  151         448.093 Definitions; use of employment verification system
  152  required for private employers; business licensing enforcement.—
  153         (1) DEFINITIONS.—As used in this section, the term:
  154         (a) “Agency” means an agency, a department, a board, or a
  155  commission of this state or a county or municipality which
  156  issues a license to operate a business in this state.
  157         (b) “Department” means the Department of Economic
  158  Opportunity.
  159         (c) “Employee” means an individual whose work is performed
  160  under the direction and supervision of the employer and whose
  161  employer withholds tax pursuant to the Federal Insurance
  162  Contributions Act (FICA) or federal income tax from the
  163  individual’s compensation, or whose employer issues an Internal
  164  Revenue Service W-2 form, but not an Internal Revenue Service
  165  Form 1099, to an individual for purposes of documenting
  166  compensation. The term does not include a licensed independent
  167  contractor as defined in federal laws or regulations.
  168         (d) “Employer” means a person or an entity in this state
  169  which employs an employee. The term does not include:
  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         (e) “Employment verification system” means:
  184         1. An Internet-based system operated by the United States
  185  Department of Homeland Security which allows participating
  186  employers to electronically verify the employment eligibility of
  187  newly hired employees;
  188         2. A system to verify whether an employee is an
  189  unauthorized alien that an employer certifies, under penalty of
  190  perjury, on a form provided by the department as a substantially
  191  equivalent electronic employment verification system to that
  192  specified in subparagraph 1.; or
  193         3. A system that complies with 8 U.S.C. 1324a and the
  194  employer maintains complete copies of all records used to
  195  establish an employee’s identity and employment authorization
  196  for at least 3 years after the employer receives the records or
  197  1 year after the employee ceases to provide services to the
  198  employer, whichever is later.
  199         (f) “Knowingly employ an unauthorized alien” has the same
  200  meaning as in 8 U.S.C. s. 1324a. The term shall be interpreted
  201  consistently with 8 U.S.C. s. 1324a and any applicable federal
  202  rules or regulations.
  203         (g) “License” means a franchise, a permit, a certificate,
  204  an approval, a registration, a charter, or any similar form of
  205  authorization required by state law and issued by an agency for
  206  the purpose of operating a business in this state. The term
  207  includes, but is not limited to:
  208         1. An article of incorporation.
  209         2. A certificate of partnership, a partnership
  210  registration, or an article of organization.
  211         3. A grant of authority issued pursuant to state or federal
  212  law.
  213         4. A transaction privilege tax license.
  214         (h) “Unauthorized alien” means a person who is not
  215  authorized under federal law to be employed in the United
  216  States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
  217  be interpreted consistently with that section and any applicable
  218  federal rules or regulations.
  221         (a) An employer shall, after making an offer of employment
  222  which has been accepted by an individual, use an employment
  223  verification system to verify such individual’s employment
  224  eligibility. Verification must occur within the period
  225  stipulated by applicable federal rules or regulations. However,
  226  an employer is not required to verify the employment eligibility
  227  of a continuing employee hired before the date of the employer’s
  228  registration with an employment verification system.
  229         (b) The requirement to use an employment verification
  230  system shall be phased in as follows:
  231         1. Employers having at least 500 employees in this state
  232  must use an employment verification system beginning January 1,
  233  2021.
  234         2. Employers having at least 100 employees in this state
  235  must use an employment verification system beginning July 1,
  236  2021.
  237         3. Employers having at least 20 employees in this state
  238  must use an employment verification system beginning January 1,
  239  2022.
  240         (c) If an employer does not register with an employment
  241  verification system, the department may impose a fine of up to
  242  $500 on the employer, who must then register with an employment
  243  verification system and provide an affidavit stating such fact
  244  to the department within 30 days. If the employer does not
  245  register with and provide the required affidavit within 30 days
  246  after the imposition of the fine becomes final, the department
  247  must order the appropriate agency to suspend all applicable
  248  licenses held by the employer until the employer registers with
  249  an employment verification system and provides the department
  250  with the required affidavit.
  252         (a)1. An employer registered with and using an employment
  253  verification system may not be held civilly liable in a cause of
  254  action for the employer’s:
  255         a. Hiring of an unauthorized alien if the information
  256  obtained from the employment verification system indicated that
  257  the person’s work authorization status was not that of an
  258  unauthorized alien; or
  259         b. Refusal to hire a person if the information obtained
  260  from the employment verification system indicated that the
  261  person’s work authorization status was that of an unauthorized
  262  alien.
  263         2. An employer who in good faith registers with and uses an
  264  employment verification system is considered to have complied
  265  with the requirements of 8 U.S.C. s. 1324a(b) and may not be
  266  held liable for any damages and is immune from any legal cause
  267  of action brought by any person or entity, including former
  268  employees, for the use of and reliance upon any incorrect
  269  information obtained from the employment verification system,
  270  including any incorrect information obtained as a result of an
  271  isolated, sporadic, or accidental technical or procedural
  272  failure, when determining final action on a person’s work
  273  authorization status.
  274         (b) For purposes of this subsection, compliance with
  275  subsection (2) creates a rebuttable presumption that an employer
  276  did not knowingly employ an unauthorized alien in violation of
  277  s. 448.09.
  278         (4) RULEMAKING.—The department shall adopt rules to define
  279  an employment verification system, if any, that is substantially
  280  equivalent to or more effective than the E-Verify system with
  281  respect to identifying unauthorized aliens and those persons
  282  eligible to work in the United States. The rules must identify
  283  the types of databases, methodologies, and evidence of identity
  284  and employment eligibility that qualify an employment
  285  verification system as substantially equivalent to or more
  286  effective than the E-Verify system.
  287         Section 4. This act shall take effect July 1, 2020.