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. 39 40 Be It Enacted by the Legislature of the State of Florida: 41 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. 100 101 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. 219 (2) VERIFICATION OF EMPLOYMENT ELIGIBILITY; FINE FOR 220 VIOLATION; SUSPENSION OF BUSINESS LICENSE.— 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. 251 (3) EMPLOYMENT OF UNAUTHORIZED ALIENS; IMMUNITY.— 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.