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.