CS for CS for CS for SB 664                      First Engrossed
    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.
   64  Be It Enacted by the Legislature of the State of Florida:
   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.
  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.
  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.
  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.