CS for CS for CS for SB 664 First Engrossed 2020664e1 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; amending s. 14 288.061, F.S.; prohibiting the approval of certain 15 economic development incentive applications after a 16 specified date; requiring an awardee to repay certain 17 moneys within a specified timeframe under certain 18 circumstances; creating s. 448.093, F.S.; defining 19 terms; requiring employers to register with and use an 20 electronic employment verification system to verify 21 the employment eligibility of new employees by a 22 certain date; authorizing employers to use an 23 alternative system that meets specified criteria to 24 confirm an employee’s identity, subject to certain 25 requirements; authorizing the Department of Economic 26 Opportunity to conduct random audits of employment 27 files of certain employers; requiring the department 28 to take certain action against a noncompliant 29 employer; requiring the appropriate licensing agency 30 to suspend a noncompliant employer’s license until 31 certain conditions are met; requiring permanent 32 revocation of licenses under specified circumstances; 33 authorizing the imposition of fines for violations of 34 the act; prohibiting an employer from knowingly 35 employing an unauthorized alien; providing civil 36 immunity for an employer registered with and using an 37 electronic employment verification system; providing 38 specified immunity and nonliability for an employer 39 who complies in good faith with the requirements of 40 the act; creating a rebuttable presumption for certain 41 employers that the employer did not knowingly employ 42 an unauthorized alien; authorizing certain persons 43 with knowledge of a violation to file a complaint with 44 the department, subject to certain limitations; 45 providing a penalty for persons who knowingly file 46 false or frivolous complaints; prescribing procedures 47 for the disposition of such complaints; requiring the 48 department to notify the Federal Government of the 49 identity of an unauthorized alien; requiring employers 50 to provide copies of certain documentation, upon 51 request, to specified persons and governmental 52 entities for certain purposes; prohibiting specified 53 persons and entities from making a determination as to 54 whether a person is an unauthorized alien; requiring 55 the department to define by rule electronic employment 56 verification systems substantially equivalent to the 57 E-Verify system; providing requirements for such 58 rules; authorizing the department to adopt additional 59 rules in administering the act; providing for 60 construction; providing appropriations and authorizing 61 positions; providing for severability; providing an 62 effective date. 63 64 Be It Enacted by the Legislature of the State of Florida: 65 66 Section 1. Subsection (1) of section 287.058, Florida 67 Statutes, is amended to read: 68 287.058 Contract document.— 69 (1) Every procurement of contractual services in excess of 70 the threshold amount provided in s. 287.017 for CATEGORY TWO, 71 except for the providing of health and mental health services or 72 drugs in the examination, diagnosis, or treatment of sick or 73 injured state employees or the providing of other benefits as 74 required by chapter 440, shall be evidenced by a written 75 agreement embodying all provisions and conditions of the 76 procurement of such services, which shall, where applicable, 77 include, but not be limited to, a provision: 78 (a) That bills for fees or other compensation for services 79 or expenses be submitted in detail sufficient for a proper 80 preaudit and postaudit thereof. 81 (b) That bills for any travel expenses be submitted in 82 accordance with s. 112.061. A state agency may establish rates 83 lower than the maximum provided in s. 112.061. 84 (c) Allowing unilateral cancellation by the agency for 85 refusal by the contractor to allow public access to all 86 documents, papers, letters, or other material made or received 87 by the contractor in conjunction with the contract, unless the 88 records are exempt from s. 24(a) of Art. I of the State 89 Constitution and s. 119.07(1). 90 (d) Specifying a scope of work that clearly establishes all 91 tasks the contractor is required to perform. 92 (e) Dividing the contract into quantifiable, measurable, 93 and verifiable units of deliverables that must be received and 94 accepted in writing by the contract manager before payment. Each 95 deliverable must be directly related to the scope of work and 96 specify a performance measure. As used in this paragraph, the 97 term “performance measure” means the required minimum acceptable 98 level of service to be performed and criteria for evaluating the 99 successful completion of each deliverable. 100 (f) Specifying the criteria and the final date by which 101 such criteria must be met for completion of the contract. 102 (g) Specifying that the contract may be renewed for a 103 period that may not exceed 3 years or the term of the original 104 contract, whichever is longer, specifying the renewal price for 105 the contractual service as set forth in the bid, proposal, or 106 reply, specifying that costs for the renewal may not be charged, 107 and specifying that renewals are contingent upon satisfactory 108 performance evaluations by the agency and subject to the 109 availability of funds. Exceptional purchase contracts pursuant 110 to s. 287.057(3)(a) and (c) may not be renewed. 111 (h) Specifying the financial consequences that the agency 112 must apply if the contractor fails to perform in accordance with 113 the contract. 114 (i) Addressing the property rights of any intellectual 115 property related to the contract and the specific rights of the 116 state regarding the intellectual property if the contractor 117 fails to provide the services or is no longer providing 118 services. 119 (j) Requiring a contractor or any subcontractor performing 120 a portion of the contract to register with and use E-Verify to 121 the extent required by s. 287.137 for all new employees hired in 122 this state during the term of the contract. 123 124 In lieu of a written agreement, the agency may authorize the use 125 of a purchase order for classes of contractual services if the 126 provisions of paragraphs (a)-(j)
(a)-(i)are included in the 127 purchase order or solicitation. The purchase order must include, 128 but need not be limited to, an adequate description of the 129 services, the contract period, and the method of payment. In 130 lieu of printing the provisions of paragraphs (a)-(c) and (g) in 131 the contract document or purchase order, agencies may 132 incorporate the requirements of paragraphs (a)-(c) and (g) by 133 reference. 134 Section 2. Section 287.137, Florida Statutes, is created to 135 read: 136 287.137 Verification of work authorization status; public 137 employers.— 138 (1) As used in this section, the term: 139 (a) “Contractor” means a person or an entity that has more 140 than 10 employees in this state and has entered into, or is 141 attempting to enter into, a contract with a public employer to 142 provide labor, supplies, or services to such employer. 143 (b) “Employee” has the same meaning as provided in s. 144 448.093. 145 (c) “E-Verify” means the Internet-based electronic 146 employment verification system operated by the United States 147 Department of Homeland Security. 148 (d) “Public employer” means an agency or a subdivision of 149 the state, regional, county, local, special district, or 150 municipal government, whether executive, judicial, or 151 legislative, or any public school, community college, or state 152 university, which employs persons who perform labor or services 153 for that employer in exchange for salary, wages, or other 154 remuneration or enters into, or attempts to enter into, a 155 contract with a contractor for an amount that will, or is 156 expected to, exceed the CATEGORY TWO threshold amount provided 157 in s. 287.017. 158 (e) “Subcontractor” means a person or an entity that has 159 more than 10 employees in this state and provides labor, 160 supplies, or services to or for a contractor or another 161 subcontractor pursuant to a contract that will, or is expected 162 to, exceed the CATEGORY TWO threshold amount provided in s. 163 287.017. 164 (f) “Unauthorized alien” means a person who is not 165 authorized under federal law to be employed in the United 166 States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall 167 be interpreted consistently with that section and any applicable 168 federal rules or regulations. 169 (2) On or after July 1, 2021: 170 (a) Every public employer, contractor, and subcontractor 171 shall register with and use E-Verify to verify the work 172 authorization status of all new employees and identify whether 173 an employee is an unauthorized alien. 174 (b) A public employer or a contractor or subcontractor in 175 this state may not enter into a contract under this section 176 unless each party to the contract registers with and uses E 177 Verify. 178 Section 3. Present subsection (6) of section 288.061, 179 Florida Statutes, is renumbered as subsection (7), and a new 180 subsection (6) is added to that section to read: 181 288.061 Economic development incentive application 182 process.— 183 (6) Beginning July 1, 2020, the executive director may not 184 approve an economic development incentive application unless the 185 application includes proof to the department that the applicant 186 business will register with and use the E-Verify system, as 187 defined in s. 287.137, or an alternative electronic employment 188 verification system approved by the department, to verify the 189 work authorization status of all newly hired employees. If the 190 department determines that an awardee is not complying with this 191 subsection, the department must notify the awardee by certified 192 mail of the department’s determination of noncompliance and the 193 awardee’s right to appeal the determination. Upon a final 194 determination of noncompliance, the awardee must repay all 195 moneys received as an economic development incentive to the 196 department within 30 days after the final determination. 197 Section 4. Section 448.093, Florida Statutes, is created to 198 read: 199 448.093 Definitions; use of electronic employment 200 verification system required for private employers; business 201 licensing enforcement.— 202 (1) DEFINITIONS.—As used in this section, the term: 203 (a) “Agency” means an agency, a department, a board, or a 204 commission of this state or a county or municipality which 205 issues a license to operate a business in this state. 206 (b) “Department” means the Department of Economic 207 Opportunity. 208 (c) “Electronic employment verification system” means: 209 1. An Internet-based system operated by the United States 210 Department of Homeland Security (E-Verify) which allows 211 participating employers to electronically verify the employment 212 eligibility of newly hired employees; or 213 2. A system substantially equivalent to E-Verify which 214 verifies whether an employee is an unauthorized alien as 215 certified by an employer, under penalty of perjury, on a form 216 provided by the department. 217 (d) “Employee” means an individual whose work is performed 218 under the direction and supervision of the employer and whose 219 employer withholds tax pursuant to the Federal Insurance 220 Contributions Act (FICA) or federal income tax from the 221 individual’s compensation, or whose employer issues an Internal 222 Revenue Service W-2 form, but not an Internal Revenue Service 223 Form 1099, to an individual for purposes of documenting 224 compensation. The term includes all individuals or entities that 225 do not meet the definition of an independent contractor under 226 federal laws or regulations to perform a specified portion of 227 labor or services. 228 (e) “Employer” means a person or an entity in this state 229 which employs an employee. The term does not include any of the 230 following: 231 1. A government employer. 232 2. The occupant or owner of a private residence who hires: 233 a. Casual labor, as defined in s. 443.036, to be performed 234 entirely within the private residence; or 235 b. A licensed independent contractor, as defined in federal 236 laws or regulations, to perform a specified portion of labor or 237 services. 238 3. An employee leasing company licensed pursuant to part XI 239 of chapter 468 which enters into a written agreement or 240 understanding with a client company which places the primary 241 obligation for compliance with this section upon the client 242 company. In the absence of a written agreement or understanding, 243 the term includes an employee leasing company. 244 (f) “Knowingly employ an unauthorized alien” has the same 245 meaning as in 8 U.S.C. s. 1324a. The term shall be interpreted 246 consistently with 8 U.S.C. s. 1324a and any applicable federal 247 rules or regulations. 248 (g) “License” means a franchise, a permit, a certificate, 249 an approval, a registration, a charter, or any similar form of 250 authorization required by state law and issued by an agency for 251 the purpose of operating a business in this state. The term 252 includes, but is not limited to: 253 1. An article of incorporation. 254 2. A certificate of partnership, a partnership 255 registration, or an article of organization. 256 3. A grant of authority issued pursuant to state or federal 257 law. 258 4. A transaction privilege tax license. 259 (h) “Unauthorized alien” means a person who is not 260 authorized under federal law to be employed in the United 261 States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall 262 be interpreted consistently with that section and any applicable 263 federal rules or regulations. 264 (2) VERIFICATION OF EMPLOYMENT ELIGIBILITY; FINE FOR 265 VIOLATION; SUSPENSION OF BUSINESS LICENSE.— 266 (a) An employer shall, after making an offer of employment 267 which has been accepted by an individual, use an electronic 268 employment verification system to verify such individual’s 269 employment eligibility. Verification must occur within the 270 period stipulated by applicable federal rules or regulations. 271 However, an employer is not required to verify the employment 272 eligibility of a continuing employee hired before the date of 273 the employer’s registration with an electronic employment 274 verification system. 275 (b) Employers in this state must use an electronic 276 employment verification system or otherwise be in compliance 277 with this section by no later than January 1, 2021. 278 (c) As an alternative to registering with an electronic 279 employment verification system, an employer may operate a system 280 that complies with 8 U.S.C. s. 1324a, and must also maintain 281 complete copies of all records used to establish an employee’s 282 identity and employment authorization for at least 3 years after 283 the employer receives the records or 1 year after the employee 284 ceases to provide services to the employer, whichever is later. 285 1. Copies of all records maintained by employers pursuant 286 to this paragraph or paragraph (b) must be provided to any state 287 or federal government agency upon request. 288 2. Beginning January 1, 2021, the department may conduct 289 random audits of employment files of those employers that do not 290 register with the E-Verify system. 291 (d)1. If an employer does not register with an electronic 292 employment verification system or otherwise comply with the 293 requirements of paragraph (c), the department must submit a 294 notice of violation to the employer, who must then register with 295 an electronic employment verification system or otherwise comply 296 with paragraph (c) and provide an affidavit stating such fact to 297 the department within 30 calendar days after the notice of 298 violation is mailed. If the employer does not become compliant 299 and provide the required affidavit within 30 calendar days 300 following the mailing of the notice of violation, the 301 appropriate licensing agency must suspend all applicable 302 licenses held by the employer until the employer becomes 303 compliant and provides the department with the required 304 affidavit. 305 2. For any employer found to have violated this subsection 306 three times within any 36 month period, the appropriate agency 307 shall permanently revoke all licenses that are held by the 308 private employer specific to the business location where the 309 unauthorized alien performed work. If the employer does not hold 310 a license specific to the business location where the 311 unauthorized alien performed work, but a license is necessary to 312 operate the private employer’s business in general, the 313 appropriate licensing agency shall permanently revoke all 314 licenses that are held by the employer at the employer’s primary 315 place of business. 316 3. For purposes of this paragraph, any licenses that are 317 subject to suspension or revocation under subparagraph 1. or 318 subparagraph 2., respectively, are all licenses that are held by 319 the employer specific to the business location where the 320 unauthorized alien performed work. 321 (e) If the department determines that an employer has not 322 registered with an electronic employment verification system or 323 complied with the requirements of paragraph (c), the department 324 may impose a fine of up to $500 per violation of this 325 subsection. 326 (3) EMPLOYMENT OF UNAUTHORIZED ALIENS; IMMUNITY; 327 COMPLAINTS.— 328 (a) An employer may not knowingly employ an unauthorized 329 alien. 330 (b) An employer registered with and using an electronic 331 employment verification system may not be held civilly liable in 332 a cause of action for the employer’s: 333 1. Hiring of an unauthorized alien if the information 334 obtained from the electronic employment verification system 335 indicated that the person’s work authorization status was not 336 that of an unauthorized alien; or 337 2. Refusal to employ a person if the information obtained 338 from the electronic employment verification system indicated 339 that the person’s work authorization status was that of an 340 unauthorized alien. 341 (c) An employer who in good faith registers with and uses 342 an electronic employment verification system is considered to 343 have complied with the requirements of 8 U.S.C. s. 1324a(b) and 344 may not be held liable for any damages and is immune from any 345 legal cause of action brought by any person or entity, including 346 former employees, for the use of and reliance upon any incorrect 347 information obtained from the electronic employment verification 348 system, including any incorrect information obtained as a result 349 of an isolated, sporadic, or accidental technical or procedural 350 failure, when determining final action on a person’s work 351 authorization status. 352 (d) For purposes of this subsection, compliance with 353 subsection (2) creates a rebuttable presumption that an employer 354 did not knowingly employ an unauthorized alien in violation of 355 s. 448.09. 356 (e) A person who has a good faith belief that an employer 357 knowingly employs, or has knowingly employed within the last 90 358 calendar days, an unauthorized alien may file a complaint with 359 the department. 360 1. A complaint may not be based on race, color, or national 361 origin, pursuant to state or federal law. 362 2. A person who knowingly files a false or frivolous 363 complaint under this subsection commits a misdemeanor of the 364 second degree, punishable as provided in s. 775.082 or s. 365 775.083. 366 (f) Upon receipt of a valid complaint substantiated by 367 evidence of a violation of paragraph (a), the department must 368 notify the employer of the complaint and direct the employer to 369 notify any employees named in the complaint. The department 370 shall also determine whether the employer is registered with an 371 electronic employment verification system or otherwise compliant 372 with the requirements of paragraph (2)(c). 373 (g) The department shall request that the Federal 374 Government verify, pursuant to 8 U.S.C. s. 1373(c), the 375 citizenship or immigration status of any employee named in the 376 complaint, and the department must rely upon such verification. 377 The department may not independently make a final determination 378 as to whether an employee is an unauthorized alien. 379 (h) Upon finding that an employer has violated paragraph 380 (a), the department must notify the United States Immigration 381 and Customs Enforcement Agency of the identity of the 382 unauthorized alien and, if known, the physical address at which 383 the unauthorized alien resides. 384 (4) ENFORCEMENT.— 385 (a) For purposes of enforcing this section, the following 386 persons or entities may request, and an employer must provide, 387 copies of any documentation relied upon by the employer for the 388 verification of a person’s employment eligibility, including, 389 but not limited to, any documentation required under this 390 section. 391 1. The Department of Law Enforcement. 392 2. The Attorney General. 393 3. A state attorney. 394 4. The statewide prosecutor. 395 (b) A person or an entity specified in paragraph (a) that 396 makes a request pursuant to this subsection must rely upon the 397 Federal Government to verify a person’s employment eligibility 398 and may not independently make a final determination as to 399 whether a person is an unauthorized alien. 400 (5) RULEMAKING.— 401 (a) The department shall adopt rules to define an 402 electronic employment verification system, if any, that is 403 substantially equivalent to or more effective than the E-Verify 404 system with respect to identifying unauthorized aliens and those 405 persons eligible to work in the United States. The rules must 406 identify the types of databases, methodologies, and evidence of 407 identity and employment eligibility that qualify an electronic 408 employment verification system as substantially equivalent to or 409 more effective than the E-Verify system. 410 (b) The department may adopt rules to: 411 1. Specify the manner of notifying licensing agencies, 412 pursuant to paragraph (2)(d), of violations by employers; 413 2. Govern the administration of fines authorized under 414 paragraph (2)(e); and 415 3. Provide for procedures for complaints filed pursuant to 416 subsection (3). 417 (6) CONSTRUCTION.—This section shall be enforced without 418 regard to race, color, or national origin, and shall be enforced 419 in a manner that is fully consistent with any applicable federal 420 laws or regulations. 421 Section 5. For the 2020-2021 fiscal year, the sum of 422 $1,612,045 in recurring funds and the sum of $1,019,600 in 423 nonrecurring funds from the General Revenue Fund are 424 appropriated to the Department of Economic Opportunity, and 15 425 full-time equivalent positions with associated salary rate of 426 681,500 are authorized, for purposes of implementing this act. 427 Section 6. If any provision of this act or its application 428 to any person or circumstance is held invalid, the invalidity 429 does not affect other provisions or applications of the act 430 which can be given effect without the invalid provision or 431 application, and to this end the provisions of this act are 432 severable. 433 Section 7. This act shall take effect July 1, 2020.