ENROLLED
       2020 Legislature      CS for CS for CS for SB 664, 2nd Engrossed
       
       
       
       
       
       
                                                              2020664er
    1  
    2         An act relating to the verification of employment
    3         eligibility; amending s. 288.061, F.S.; prohibiting
    4         the approval of certain economic development incentive
    5         applications after a specified date; requiring an
    6         awardee to repay certain moneys within a specified
    7         timeframe under certain circumstances; creating s.
    8         448.095, F.S.; providing definitions; requiring public
    9         employers, contractors, and subcontractors to register
   10         with and use the E-Verify system; prohibiting such
   11         entities from entering into a contract unless each
   12         party to the contract registers with and uses the E
   13         Verify system; requiring a subcontractor to provide a
   14         contractor with a certain affidavit; requiring a
   15         contractor to maintain a copy of such affidavit;
   16         authorizing the termination of a contract under
   17         certain conditions; providing that such termination is
   18         not a breach of contract; authorizing a challenge to
   19         such termination; providing certain liability for
   20         contractors if a contract is terminated; requiring
   21         private employers to verify the employment eligibility
   22         of newly hired employees beginning on a specified
   23         date; providing an exception; providing acceptable
   24         methods for verifying employment eligibility;
   25         requiring a private employer to maintain certain
   26         documentation for a specified time period; providing
   27         specified immunity and nonliability for private
   28         employers; creating a rebuttable presumption for
   29         private employers; requiring private employers to
   30         provide copies of certain documentation, upon request,
   31         to specified persons and entities for certain
   32         purposes; prohibiting specified persons and entities
   33         from making a determination as to whether a person is
   34         an unauthorized alien; requiring a specified affidavit
   35         from certain private employers; providing for the
   36         suspension or permanent revocation of certain licenses
   37         under certain circumstances; providing construction;
   38         providing an effective date.
   39          
   40  Be It Enacted by the Legislature of the State of Florida:
   41  
   42         Section 1. Subsection (6) of section 288.061, Florida
   43  Statutes, is renumbered as subsection (7), and a new subsection
   44  (6) is added to that section to read:
   45         288.061 Economic development incentive application
   46  process.—
   47         (6) Beginning July 1, 2020, the executive director may not
   48  approve an economic development incentive application unless the
   49  application includes proof to the department that the applicant
   50  business is registered with and uses the E-Verify system, as
   51  defined in s. 448.095, to verify the work authorization status
   52  of all newly hired employees. If the department determines that
   53  an awardee is not complying with this subsection, the department
   54  must notify the awardee by certified mail of the department’s
   55  determination of noncompliance and the awardee’s right to appeal
   56  the determination. Upon a final determination of noncompliance,
   57  the awardee must repay all moneys received as an economic
   58  development incentive to the department within 30 days after the
   59  final determination.
   60         Section 2. Section 448.095, Florida Statutes, is created to
   61  read:
   62         448.095 Employment eligibility.—
   63         (1) DEFINITIONS.—As used in this section, the term:
   64         (a) “Agency” means any agency, department, board, or
   65  commission of this state or a county or municipality in this
   66  state that issues a license to operate a business in this state.
   67         (b) “Contractor” means a person or entity that has entered
   68  or is attempting to enter into a contract with a public employer
   69  to provide labor, supplies, or services to such employer in
   70  exchange for salary, wages, or other remuneration.
   71         (c) “Department” means the Department of Economic
   72  Opportunity.
   73         (d) “Employee” means a person filling an authorized and
   74  established position who performs labor or services for a public
   75  or private employer in exchange for salary, wages, or other
   76  remuneration.
   77         (e) “E-Verify system” means an Internet-based system
   78  operated by the United States Department of Homeland Security
   79  that allows participating employers to electronically verify the
   80  employment eligibility of newly hired employees.
   81         (f) “Legal alien” means a person who is or was lawfully
   82  present or permanently residing legally in the United States and
   83  allowed to work at the time of employment and remains so
   84  throughout the duration of that employment.
   85         (g) “License” means a franchise, a permit, a certificate,
   86  an approval, a registration, a charter, or any similar form of
   87  authorization required by state law and issued by an agency for
   88  the purpose of operating a business in this state. The term
   89  includes, but is not limited to:
   90         1. An article of incorporation.
   91         2. A certificate of partnership, a partnership
   92  registration, or an article of organization.
   93         3. A grant of authority issued pursuant to state or federal
   94  law.
   95         4. A transaction privilege tax license.
   96         (h) “Private employer” means a person or entity that
   97  transacts business in this state, has a license issued by an
   98  agency, and employs persons to perform labor or services in this
   99  state in exchange for salary, wages, or other remuneration. The
  100  term does not include:
  101         1. A public employer;
  102         2. The occupant or owner of a private residence who hires:
  103         a. Casual labor, as defined in s. 443.036, to be performed
  104  entirely within the private residence; or
  105         b. A licensed independent contractor, as defined in federal
  106  laws or regulations, to perform a specified portion of labor or
  107  services; or
  108         3. An employee leasing company licensed under part XI of
  109  chapter 468 that enters into a written agreement or
  110  understanding with a client company which places the primary
  111  obligation for compliance with this section upon the client
  112  company. In the absence of a written agreement or understanding,
  113  the employee leasing company is responsible for compliance with
  114  this section. Such employee leasing company shall, at all times,
  115  remain an employer as otherwise defined in federal laws or
  116  regulations.
  117         (i) “Public employer” means an entity within state,
  118  regional, county, local, or municipal government, whether
  119  executive, judicial, or legislative, or any public school,
  120  community college, or state university that employs persons who
  121  perform labor or services for that employer in exchange for
  122  salary, wages, or other remuneration or that enters or attempts
  123  to enter into a contract with a contractor.
  124         (j) “Subcontractor” means a person or entity that provides
  125  labor, supplies, or services to or for a contractor or another
  126  subcontractor in exchange for salary, wages, or other
  127  remuneration.
  128         (k) “Unauthorized alien” means a person who is not
  129  authorized under federal law to be employed in the United
  130  States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
  131  be interpreted consistently with that section and any applicable
  132  federal rules or regulations.
  133         (2) PUBLIC EMPLOYERS, CONTRACTORS, AND SUBCONTRACTORS.—
  134         (a) Beginning January 1, 2021, every public employer,
  135  contractor, and subcontractor shall register with and use the E
  136  Verify system to verify the work authorization status of all
  137  newly hired employees. A public employer, contractor, or
  138  subcontractor may not enter into a contract unless each party to
  139  the contract registers with and uses the E-Verify system.
  140         (b)1. If a contractor enters into a contract with a
  141  subcontractor, the subcontractor must provide the contractor
  142  with an affidavit stating that the subcontractor does not
  143  employ, contract with, or subcontract with an unauthorized
  144  alien.
  145         2. The contractor shall maintain a copy of such affidavit
  146  for the duration of the contract.
  147         (c)1. A public employer, contractor, or subcontractor who
  148  has a good faith belief that a person or entity with which it is
  149  contracting has knowingly violated s. 448.09(1) shall terminate
  150  the contract with the person or entity.
  151         2. A public employer that has a good faith belief that a
  152  subcontractor knowingly violated this subsection, but the
  153  contractor otherwise complied with this subsection, shall
  154  promptly notify the contractor and order the contractor to
  155  immediately terminate the contract with the subcontractor.
  156         3. A contract terminated under subparagraph 1. or
  157  subparagraph 2. is not a breach of contract and may not be
  158  considered as such.
  159         (d) A public employer, contractor, or subcontractor may
  160  file an action with a circuit or county court to challenge a
  161  termination under paragraph (c) no later than 20 calendar days
  162  after the date on which the contract was terminated.
  163         (e) If a public employer terminates a contract with a
  164  contractor under paragraph (c), the contractor may not be
  165  awarded a public contract for at least 1 year after the date on
  166  which the contract was terminated.
  167         (f) A contractor is liable for any additional costs
  168  incurred by a public employer as a result of the termination of
  169  a contract.
  170         (3) PRIVATE EMPLOYERS.—
  171         (a) Beginning January 1, 2021, a private employer shall,
  172  after making an offer of employment which has been accepted by a
  173  person, verify such person’s employment eligibility. A private
  174  employer is not required to verify the employment eligibility of
  175  a continuing employee hired before January 1, 2021. However, if
  176  a person is a contract employee retained by a private employer,
  177  the private employer must verify the employee’s employment
  178  eligibility upon the renewal or extension of his or her
  179  contract.
  180         (b) A private employer shall verify a person’s employment
  181  eligibility by:
  182         1. Using the E-Verify system; or
  183         2. Requiring the person to provide the same documentation
  184  that is required by the United States Citizenship and
  185  Immigration Services on its Employment Eligibility Verification
  186  form (Form I-9).
  187  
  188  The private employer must retain a copy of the documentation
  189  provided under this subparagraph for at least 3 years after the
  190  person’s initial date of employment.
  191         (c) A private employer that complies with this subsection
  192  may not be held civilly or criminally liable under state law for
  193  hiring, continuing to employ, or refusing to hire an
  194  unauthorized alien if the information obtained under paragraph
  195  (b) indicates that the person’s work authorization status was
  196  not that of an unauthorized alien.
  197         (d) For purposes of this subsection, compliance with
  198  paragraph (b) creates a rebuttable presumption that a private
  199  employer did not knowingly employ an unauthorized alien in
  200  violation of s. 448.09(1).
  201         (e) For the purpose of enforcement of this section, the
  202  following persons or entities may request, and a private
  203  employer must provide, copies of any documentation relied upon
  204  by the private employer for the verification of a person’s
  205  employment eligibility, including, but not limited to, any
  206  documentation required under paragraph (b):
  207         1. The Department of Law Enforcement.
  208         2. The Attorney General.
  209         3. The state attorney.
  210         4. The statewide prosecutor.
  211  
  212  A person or entity that makes a request under this paragraph
  213  must rely upon the federal government to verify a person’s
  214  employment eligibility and may not independently make a final
  215  determination as to whether a person is an unauthorized alien.
  216         (f) If a private employer does not comply with paragraph
  217  (b), the department shall require the private employer to
  218  provide an affidavit to the department stating that the private
  219  employer will comply with paragraph (b), the private employer
  220  has terminated the employment of all unauthorized aliens in this
  221  state, and the employer will not intentionally or knowingly
  222  employ an unauthorized alien in this state. If the private
  223  employer does not provide the required affidavit within 30 days
  224  after the department’s request, the appropriate licensing agency
  225  shall suspend all applicable licenses held by the private
  226  employer until the private employer provides the department with
  227  the required affidavit. For purposes of this paragraph, the
  228  licenses that are subject to suspension under this paragraph are
  229  all licenses that are held by the private employer specific to
  230  the business location where the unauthorized alien performed
  231  work. If the private employer does not hold a license specific
  232  to the business location where the unauthorized alien performed
  233  work, but a license is necessary to operate the private
  234  employer’s business in general, the licenses that are subject to
  235  suspension under this paragraph are all licenses that are held
  236  by the private employer at the private employer’s primary place
  237  of business.
  238         (g) For any private employer found to have violated
  239  paragraph (f) three times within any 36 month period, the
  240  appropriate licensing agency shall permanently revoke all
  241  licenses that are held by the private employer specific to the
  242  business location where the unauthorized alien performed work.
  243  If the private employer does not hold a license specific to the
  244  business location where the unauthorized alien performed work,
  245  but a license is necessary to operate the private employer’s
  246  business in general, the appropriate licensing agency shall
  247  permanently revoke all licenses that are held by the private
  248  employer at the private employer’s primary place of business.
  249         (4) CONSTRUCTION.—This section shall be enforced without
  250  regard to race, color, or national origin and shall be construed
  251  in a manner so as to be fully consistent with any applicable
  252  federal laws or regulations.
  253         Section 3. This act shall take effect July 1, 2020.