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. 53 54 Be It Enacted by the Legislature of the State of Florida: 55 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. 113 114 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. 235 (2) VERIFICATION OF EMPLOYMENT ELIGIBILITY; FINE FOR 236 VIOLATION; SUSPENSION OF BUSINESS LICENSE.— 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. 283 (3) EMPLOYMENT OF UNAUTHORIZED ALIENS; IMMUNITY; 284 COMPLAINTS.— 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.