Florida Senate - 2020                CS for CS for CS for SB 664
       By the Committees on Rules; Commerce and Tourism; and Judiciary;
       and Senators Lee, Gruters, Harrell, and Simmons
       595-04469-20                                           2020664c3
    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 E-Verify; creating s. 287.137,
    8         F.S.; defining terms; requiring public employers and
    9         certain contractors and subcontractors to register
   10         with and use E-Verify by a specified date; prohibiting
   11         public employers, contractors, and subcontractors from
   12         entering into a contract unless each party to the
   13         contract registers with and uses E-Verify; creating s.
   14         448.093, F.S.; defining terms; requiring employers who
   15         meet specified criteria to register with and use an
   16         electronic employment verification system to verify
   17         the employment eligibility of new employees; requiring
   18         employers who employ more than a specified number of
   19         employees to use an electronic employment verification
   20         system by a certain date; authorizing certain
   21         employers to use an alternative system that meets
   22         specified criteria to confirm an employee’s identity,
   23         subject to certain requirements; authorizing the
   24         Department of Economic Opportunity to conduct random
   25         audits of employment files of certain employers;
   26         requiring the department to take certain action
   27         against a noncompliant employer; requiring the
   28         appropriate licensing agency to suspend a noncompliant
   29         employer’s license until certain conditions are met;
   30         authorizing the imposition of fines for violations of
   31         the act; prohibiting an employer from knowingly
   32         employing an unauthorized alien; providing civil
   33         immunity for an employer registered with and using an
   34         electronic employment verification system; providing
   35         specified immunity and nonliability for an employer
   36         who complies in good faith with the requirements of
   37         the act; creating a rebuttable presumption for certain
   38         employers that the employer did not knowingly employ
   39         an unauthorized alien; authorizing certain persons
   40         with knowledge of a violation to file a complaint with
   41         the department, subject to certain limitations;
   42         providing a penalty for persons who knowingly file
   43         false or frivolous complaints; prescribing procedures
   44         for the disposition of such complaints; requiring the
   45         department to notify the Federal Government of the
   46         identity of an unauthorized alien; requiring the
   47         department to define by rule electronic employment
   48         verification systems substantially equivalent to the
   49         E-Verify system; providing requirements for such
   50         rules; authorizing the department to adopt additional
   51         rules in administering the act; providing for
   52         severability; providing an effective date.
   54  Be It Enacted by the Legislature of the State of Florida:
   56         Section 1. Subsection (1) of section 287.058, Florida
   57  Statutes, is amended to read:
   58         287.058 Contract document.—
   59         (1) Every procurement of contractual services in excess of
   60  the threshold amount provided in s. 287.017 for CATEGORY TWO,
   61  except for the providing of health and mental health services or
   62  drugs in the examination, diagnosis, or treatment of sick or
   63  injured state employees or the providing of other benefits as
   64  required by chapter 440, shall be evidenced by a written
   65  agreement embodying all provisions and conditions of the
   66  procurement of such services, which shall, where applicable,
   67  include, but not be limited to, a provision:
   68         (a) That bills for fees or other compensation for services
   69  or expenses be submitted in detail sufficient for a proper
   70  preaudit and postaudit thereof.
   71         (b) That bills for any travel expenses be submitted in
   72  accordance with s. 112.061. A state agency may establish rates
   73  lower than the maximum provided in s. 112.061.
   74         (c) Allowing unilateral cancellation by the agency for
   75  refusal by the contractor to allow public access to all
   76  documents, papers, letters, or other material made or received
   77  by the contractor in conjunction with the contract, unless the
   78  records are exempt from s. 24(a) of Art. I of the State
   79  Constitution and s. 119.07(1).
   80         (d) Specifying a scope of work that clearly establishes all
   81  tasks the contractor is required to perform.
   82         (e) Dividing the contract into quantifiable, measurable,
   83  and verifiable units of deliverables that must be received and
   84  accepted in writing by the contract manager before payment. Each
   85  deliverable must be directly related to the scope of work and
   86  specify a performance measure. As used in this paragraph, the
   87  term “performance measure” means the required minimum acceptable
   88  level of service to be performed and criteria for evaluating the
   89  successful completion of each deliverable.
   90         (f) Specifying the criteria and the final date by which
   91  such criteria must be met for completion of the contract.
   92         (g) Specifying that the contract may be renewed for a
   93  period that may not exceed 3 years or the term of the original
   94  contract, whichever is longer, specifying the renewal price for
   95  the contractual service as set forth in the bid, proposal, or
   96  reply, specifying that costs for the renewal may not be charged,
   97  and specifying that renewals are contingent upon satisfactory
   98  performance evaluations by the agency and subject to the
   99  availability of funds. Exceptional purchase contracts pursuant
  100  to s. 287.057(3)(a) and (c) may not be renewed.
  101         (h) Specifying the financial consequences that the agency
  102  must apply if the contractor fails to perform in accordance with
  103  the contract.
  104         (i) Addressing the property rights of any intellectual
  105  property related to the contract and the specific rights of the
  106  state regarding the intellectual property if the contractor
  107  fails to provide the services or is no longer providing
  108  services.
  109         (j) Requiring a contractor or any subcontractor performing
  110  a portion of the contract to register with and use E-Verify to
  111  the extent required by s. 287.137 for all new employees hired in
  112  this state during the term of the contract.
  114  In lieu of a written agreement, the agency may authorize the use
  115  of a purchase order for classes of contractual services if the
  116  provisions of paragraphs (a)-(j) (a)-(i) are included in the
  117  purchase order or solicitation. The purchase order must include,
  118  but need not be limited to, an adequate description of the
  119  services, the contract period, and the method of payment. In
  120  lieu of printing the provisions of paragraphs (a)-(c) and (g) in
  121  the contract document or purchase order, agencies may
  122  incorporate the requirements of paragraphs (a)-(c) and (g) by
  123  reference.
  124         Section 2. Section 287.137, Florida Statutes, is created to
  125  read:
  126         287.137 Verification of work authorization status; public
  127  employers.—
  128         (1) As used in this section, the term:
  129         (a) “Contractor” means a person or an entity that has more
  130  than 10 employees in this state and has entered into, or is
  131  attempting to enter into, a contract with a public employer to
  132  provide labor, supplies, or services to such employer.
  133         (b) “Employee” has the same meaning as provided in s.
  134  448.093.
  135         (c) “E-verify” means the Internet-based electronic
  136  employment verification system operated by the United States
  137  Department of Homeland Security.
  138         (d) “Public employer” means an agency or a subdivision of
  139  the state, regional, county, local, special district, or
  140  municipal government, whether executive, judicial, or
  141  legislative, or any public school, community college, or state
  142  university, which employs persons who perform labor or services
  143  for that employer in exchange for salary, wages, or other
  144  remuneration or enters into, or attempts to enter into, a
  145  contract with a contractor for an amount that will, or is
  146  expected to, exceed the CATEGORY TWO threshold amount provided
  147  in s. 287.017.
  148         (e) “Subcontractor” means a person or an entity that has
  149  more than 10 employees in this state and provides labor,
  150  supplies, or services to or for a contractor or another
  151  subcontractor pursuant to a contract that will, or is expected
  152  to, exceed the CATEGORY TWO threshold amount provided in s.
  153  287.017.
  154         (f) “Unauthorized alien” means a person who is not
  155  authorized under federal law to be employed in the United
  156  States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
  157  be interpreted consistently with that section and any applicable
  158  federal rules or regulations.
  159         (2) On or after July 1, 2021:
  160         (a) Every public employer, contractor, and subcontractor
  161  shall register with and use E-Verify to verify the work
  162  authorization status of all new employees and identify whether
  163  an employee is an unauthorized alien.
  164         (b) A public employer or a contractor or subcontractor in
  165  this state may not enter into a contract under this section
  166  unless each party to the contract registers with and uses E
  167  Verify.
  168         Section 3. Section 448.093, Florida Statutes, is created to
  169  read:
  170         448.093 Definitions; use of electronic employment
  171  verification system required for private employers; business
  172  licensing enforcement.—
  173         (1) DEFINITIONS.—As used in this section, the term:
  174         (a) “Agency” means an agency, a department, a board, or a
  175  commission of this state or a county or municipality which
  176  issues a license to operate a business in this state.
  177         (b) “Department” means the Department of Economic
  178  Opportunity.
  179         (c) “Electronic employment verification system” means:
  180         1. An Internet-based system operated by the United States
  181  Department of Homeland Security (E-Verify) which allows
  182  participating employers to electronically verify the employment
  183  eligibility of newly hired employees; or
  184         2. A system substantially equivalent to E-Verify which
  185  verifies whether an employee is an unauthorized alien as
  186  certified by an employer, under penalty of perjury, on a form
  187  provided by the department.
  188         (d) “Employee” means an individual whose work is performed
  189  under the direction and supervision of the employer and whose
  190  employer withholds tax pursuant to the Federal Insurance
  191  Contributions Act (FICA) or federal income tax from the
  192  individual’s compensation, or whose employer issues an Internal
  193  Revenue Service W-2 form, but not an Internal Revenue Service
  194  Form 1099, to an individual for purposes of documenting
  195  compensation. The term includes all individuals or entities that
  196  do not meet the definition of an independent contractor under
  197  federal laws or regulations to perform a specified portion of
  198  labor or services.
  199         (e) “Employer” means a person or an entity in this state
  200  which employs an employee. The term does not include any of the
  201  following:
  202         1. A government employer.
  203         2. The occupant or owner of a private residence who hires:
  204         a. Casual labor, as defined in s. 443.036, to be performed
  205  entirely within the private residence; or
  206         b. A licensed independent contractor, as defined in federal
  207  laws or regulations, to perform a specified portion of labor or
  208  services.
  209         3. An employee leasing company licensed pursuant to part XI
  210  of chapter 468 which enters into a written agreement or
  211  understanding with a client company which places the primary
  212  obligation for compliance with this section upon the client
  213  company. In the absence of a written agreement or understanding,
  214  the term includes an employee leasing company.
  215         (f) “Knowingly employ an unauthorized alien” has the same
  216  meaning as in 8 U.S.C. s. 1324a. The term shall be interpreted
  217  consistently with 8 U.S.C. s. 1324a and any applicable federal
  218  rules or regulations.
  219         (g) “License” means a franchise, a permit, a certificate,
  220  an approval, a registration, a charter, or any similar form of
  221  authorization required by state law and issued by an agency for
  222  the purpose of operating a business in this state. The term
  223  includes, but is not limited to:
  224         1. An article of incorporation.
  225         2. A certificate of partnership, a partnership
  226  registration, or an article of organization.
  227         3. A grant of authority issued pursuant to state or federal
  228  law.
  229         4. A transaction privilege tax license.
  230         (h) “Unauthorized alien” means a person who is not
  231  authorized under federal law to be employed in the United
  232  States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
  233  be interpreted consistently with that section and any applicable
  234  federal rules or regulations.
  237         (a) An employer shall, after making an offer of employment
  238  which has been accepted by an individual, use an electronic
  239  employment verification system to verify such individual’s
  240  employment eligibility. Verification must occur within the
  241  period stipulated by applicable federal rules or regulations.
  242  However, an employer is not required to verify the employment
  243  eligibility of a continuing employee hired before the date of
  244  the employer’s registration with an electronic employment
  245  verification system.
  246         (b) Employers having at least 50 employees in this state
  247  must use an electronic employment verification system or
  248  otherwise be in compliance with this section by no later than
  249  January 1, 2021.
  250         (c) As an alternative to registering with an electronic
  251  employment verification system, employers having fewer than 50
  252  employees may operate a system that complies with 8 U.S.C. s.
  253  1324a, and must also maintain complete copies of all records
  254  used to establish an employee’s identity and employment
  255  authorization for at least 3 years after the employer receives
  256  the records or 1 year after the employee ceases to provide
  257  services to the employer, whichever is later.
  258         1. Copies of all records maintained by employers pursuant
  259  to this paragraph or paragraph (b) must be provided to any state
  260  or federal government agency upon request.
  261         2. Beginning January 1, 2021, the department may conduct
  262  random audits of employment files of those employers that do not
  263  register with the E-Verify system.
  264         (d) If an employer does not register with an electronic
  265  employment verification system or otherwise comply with the
  266  requirements of paragraph (c), the department must submit a
  267  notice of violation to the employer, who must then register with
  268  an electronic employment verification system or otherwise comply
  269  with paragraph (c) and provide an affidavit stating such fact to
  270  the department within 30 calendar days after the notice of
  271  violation is mailed. If the employer does not become compliant
  272  and provide the required affidavit within 30 calendar days
  273  following the mailing of the notice of violation, the
  274  appropriate licensing agency must suspend all applicable
  275  licenses held by the employer until the employer becomes
  276  compliant and provides the department with the required
  277  affidavit.
  278         (e) If the department determines that an employer has not
  279  registered with an electronic employment verification system or
  280  complied with the requirements of paragraph (c), the department
  281  may impose a fine of up to $500 per violation of this
  282  subsection.
  285         (a) An employer may not knowingly employ an unauthorized
  286  alien.
  287         (b) An employer registered with and using an electronic
  288  employment verification system may not be held civilly liable in
  289  a cause of action for the employer’s:
  290         1. Hiring of an unauthorized alien if the information
  291  obtained from the electronic employment verification system
  292  indicated that the person’s work authorization status was not
  293  that of an unauthorized alien; or
  294         2. Refusal to employ a person if the information obtained
  295  from the electronic employment verification system indicated
  296  that the person’s work authorization status was that of an
  297  unauthorized alien.
  298         (c) An employer who in good faith registers with and uses
  299  an electronic employment verification system is considered to
  300  have complied with the requirements of 8 U.S.C. s. 1324a(b) and
  301  may not be held liable for any damages and is immune from any
  302  legal cause of action brought by any person or entity, including
  303  former employees, for the use of and reliance upon any incorrect
  304  information obtained from the electronic employment verification
  305  system, including any incorrect information obtained as a result
  306  of an isolated, sporadic, or accidental technical or procedural
  307  failure, when determining final action on a person’s work
  308  authorization status.
  309         (d) For purposes of this subsection, compliance with
  310  subsection (2) creates a rebuttable presumption that an employer
  311  did not knowingly employ an unauthorized alien in violation of
  312  s. 448.09.
  313         (e) A person who has a good faith belief that an employer
  314  knowingly employs, or has knowingly employed within the last 90
  315  calendar days, an unauthorized alien may file a complaint with
  316  the department.
  317         1. A complaint may not be based on race, color, or national
  318  origin, pursuant to state or federal law.
  319         2. A person who knowingly files a false or frivolous
  320  complaint under this subsection commits a misdemeanor of the
  321  second degree, punishable as provided in s. 775.082 or s.
  322  775.083.
  323         (f) Upon receipt of a valid complaint substantiated by
  324  evidence of a violation of paragraph (a), the department must
  325  notify the employer of the complaint and direct the employer to
  326  notify any employees named in the complaint. The department
  327  shall also determine whether the employer is registered with an
  328  electronic employment verification system or otherwise compliant
  329  with the requirements of paragraph (2)(c).
  330         (g) The department shall request that the Federal
  331  Government verify, pursuant to 8 U.S.C. s. 1373(c), the
  332  citizenship or immigration status of any employee named in the
  333  complaint, and the department must rely upon such verification.
  334  The department may not independently make a final determination
  335  as to whether an employee is an unauthorized alien.
  336         (h) Upon finding that an employer has violated paragraph
  337  (a), the department must notify the United States Immigration
  338  and Customs Enforcement Agency of the identity of the
  339  unauthorized alien and, if known, the physical address at which
  340  the unauthorized alien resides.
  341         (4) RULEMAKING.—
  342         (a) The department shall adopt rules to define an
  343  electronic employment verification system, if any, that is
  344  substantially equivalent to or more effective than the E-Verify
  345  system with respect to identifying unauthorized aliens and those
  346  persons eligible to work in the United States. The rules must
  347  identify the types of databases, methodologies, and evidence of
  348  identity and employment eligibility that qualify an electronic
  349  employment verification system as substantially equivalent to or
  350  more effective than the E-Verify system.
  351         (b) The department may adopt rules to:
  352         1. Specify the manner of notifying licensing agencies,
  353  pursuant to paragraph (2)(d), of violations by employers;
  354         2. Govern the administration of fines authorized under
  355  paragraph (2)(e); and
  356         3. Provide for procedures for complaints filed pursuant to
  357  subsection (3).
  358         Section 4. If any provision of this act or its application
  359  to any person or circumstance is held invalid, the invalidity
  360  does not affect other provisions or applications of the act
  361  which can be given effect without the invalid provision or
  362  application, and to this end the provisions of this act are
  363  severable.
  364         Section 5. This act shall take effect July 1, 2020.