Florida Senate - 2012                                    SB 1638
       
       
       
       By Senator Altman
       
       
       
       
       24-00462A-12                                          20121638__
    1                        A bill to be entitled                      
    2         An act relating to the verification of employment
    3         eligibility; defining terms; requiring every employer
    4         to use the Employment Authorization Program to verify
    5         the employment eligibility of each new employee on or
    6         after a specified date; providing that a business that
    7         does not use the E-Verify system to verify the
    8         employment eligibility of the employee shall lose its
    9         license to do business in this state until the
   10         business has registered with the E-Verify system;
   11         requiring that each verification be made in accordance
   12         with certain provisions of federal law; prohibiting an
   13         employer from employing an unauthorized alien;
   14         authorizing certain persons to file a complaint with
   15         the Department of Business and Professional Regulation
   16         or the Department of Economic Opportunity alleging
   17         that an employer has employed an unauthorized alien;
   18         prohibiting the filing of a complaint based on race,
   19         color, or national origin; providing that a person who
   20         knowingly files a false and frivolous complaint
   21         commits a misdemeanor of the second degree; providing
   22         criminal penalties; requiring the department or the
   23         Department of Economic Opportunity to notify the
   24         employer upon receipt of a complaint; requiring the
   25         department or the Department of Economic Opportunity
   26         to investigate whether a violation has occurred;
   27         authorizing the department and the Department of
   28         Economic Opportunity to issue a subpoena for the
   29         production of documents; requiring the department or
   30         the Department of Economic Opportunity to request that
   31         the Federal Government verify the employment
   32         eligibility of any employee named in a complaint;
   33         prohibiting the department or the Department of
   34         Economic Opportunity from independently making a final
   35         determination regarding whether an employee is
   36         authorized to be employed in the United States;
   37         requiring the department or the Department of Economic
   38         Opportunity to notify certain entities after
   39         determining that the employer has employed an
   40         unauthorized alien; prohibiting the department or the
   41         Department of Economic Opportunity from acting on a
   42         complaint for a violation of law occurring before a
   43         specified date; requiring the department or the
   44         Department of Economic Opportunity to order an
   45         employer to take certain action upon a first violation
   46         of the prohibition against hiring an unauthorized
   47         alien; requiring that certain licenses of an employer
   48         be suspended if the employer fails to file an
   49         affidavit confirming the termination of employment of
   50         an unauthorized alien; providing for reinstatement of
   51         such licenses under certain circumstances; requiring
   52         that the department or the Department of Economic
   53         Opportunity take certain action against an employer
   54         for a second violation within a specified period
   55         following the prohibition against hiring an
   56         unauthorized alien; specifying actions for which an
   57         employer registered with and participating in the E
   58         Verify system may not be held civilly liable;
   59         providing specified immunity and nonliability with
   60         respect to employers who properly comply with the E
   61         Verify system in good faith and rely upon information
   62         provided by the system; requiring the Department of
   63         Economic Opportunity to maintain a public database
   64         containing certain information and make such
   65         information available on its website; authorizing the
   66         department or the Department of Economic Opportunity
   67         to apply to the appropriate circuit court for a
   68         judicial order directing an employer to comply with an
   69         order issued by the department or the Department of
   70         Economic Opportunity; creating a rebuttable
   71         presumption for certain employers that the employer
   72         did not knowingly employ an unauthorized alien;
   73         authorizing an employer or employee to seek an
   74         injunction under certain circumstances; providing that
   75         certain actions by an employer constitute an unfair
   76         trade practice; providing that an employee aggrieved
   77         by such actions has a private cause of action against
   78         the employer for a deceptive and unfair trade
   79         practice; providing for an award of court costs and
   80         attorney fees; providing that a cause of action does
   81         not exist against an employer participating in the E
   82         Verify system on the date of discharge of an employee
   83         under specified circumstances; providing for
   84         construction of the act; creating s. 287.136, F.S.;
   85         defining terms; requiring every public employer to
   86         register with and participate in the E-Verify system
   87         for specified purposes; prohibiting a public employer,
   88         contractor, or subcontractor from entering into a
   89         contract for the physical performance of services in
   90         this state unless the contractor or subcontractor
   91         registers and participates in the system; requiring
   92         that subcontractors certify certain information to
   93         contractors by specified means; requiring that a
   94         contractor maintain a copy of the certification for a
   95         specified period; authorizing a contractor to
   96         terminate a contract with a subcontractor under
   97         certain conditions; providing that such termination is
   98         not a breach of contract; authorizing a subcontractor
   99         to challenge a termination within a specified period;
  100         requiring that a public contractor terminate a
  101         contract if the contractor or subcontractor is in
  102         violation of the act; providing that such termination
  103         is not a breach of contract; authorizing a contractor
  104         or subcontractor to challenge such a termination
  105         within a specified period; providing guidelines for
  106         interpretation of the provisions of the act; creating
  107         s. 337.163, F.S.; defining terms; requiring the
  108         Department of Transportation to register with and
  109         participate in the E-Verify system for specified
  110         purposes; prohibiting the department, a contractor, or
  111         subcontractor from entering into a contract for the
  112         physical performance of services in this state under
  113         ch. 337, F.S., unless the contractor or subcontractor
  114         registers and participates in the system; requiring
  115         that subcontractors certify certain information to
  116         contractors by specified means; requiring that a
  117         contractor maintain a copy of the certification for a
  118         specified period; authorizing a contractor to
  119         terminate a contract with a subcontractor under
  120         certain conditions; providing that such termination is
  121         not a breach of contract; authorizing a subcontractor
  122         to challenge a termination within a specified period;
  123         requiring that a public contractor terminate a
  124         contract if the contractor or subcontractor is in
  125         violation of the act; providing that such termination
  126         is not a breach of contract; authorizing a contractor
  127         or subcontractor to challenge such a termination
  128         within a specified period; providing guidelines for
  129         interpretation of the provisions of the act; providing
  130         for severability; providing an effective date.
  131  
  132  Be It Enacted by the Legislature of the State of Florida:
  133  
  134         Section 1. Use of E-Verify system required for private
  135  employers; business licensing enforcement; private right of
  136  action for wrongfully discharged worker.—
  137         (1) DEFINITIONS.—As used in this section, the term:
  138         (a) “Agency” means an agency, department, board, or
  139  commission of this state or a county, municipality, or town
  140  issuing a license for the purpose of operating a business in
  141  this state.
  142         (b) “E-Verify system” means the Employment Authorization
  143  Program, formerly the “Basic Pilot Program,” under Pub. L. No.
  144  104-208, Div. C, Title IV, Subtitle A, 110 Stat. 3009-655 (Sept.
  145  30, 1996), as amended, or any successor program designated by
  146  the Federal Government for verification that an employee is an
  147  unauthorized alien.
  148         (c) “Employee” means any person who performs employment
  149  services in this state for an employer pursuant to an employment
  150  relationship between the person and employer. An employee does
  151  not include an independent contractor as defined by federal law
  152  and regulations.
  153         (d) “Employer” means any person or entity transacting
  154  business in this state which employs individuals. The term does
  155  not include:
  156         1. A government employer;
  157         2. The occupant or owner of a private residence who hires
  158  casual domestic labor to perform work customarily performed by a
  159  homeowner entirely within a private residence;
  160         3. That portion of labor and services provided to a person
  161  or entity by a licensed independent contractor; or
  162         4. An employee leasing company licensed pursuant to part XI
  163  of chapter 468, Florida Statutes, which enters into a written
  164  agreement or understanding with its client company which places
  165  the primary obligation for compliance with this part upon its
  166  client company. In the absence of a written agreement or
  167  understanding, the contracting party, whether the licensed
  168  employee leasing company or client company, which initially
  169  hires the leased employee is responsible for the obligations set
  170  forth in this part. Such employee leasing company shall, at all
  171  times, remain an employer as otherwise specified by law.
  172         (e) “Enforcing authority” has the same meaning as “agency,”
  173  as defined in paragraph (a), if the agency has the mechanisms to
  174  conduct investigations of a licensee and to enforce discipline
  175  against a licensee. If the agency is not so equipped, “enforcing
  176  authority” means the Department of Economic Opportunity.
  177         (f) “License” means a license, permit, certificate,
  178  approval, registration, charter, or similar form of
  179  authorization required by law and issued by an agency for the
  180  purpose of operating a business in this state. A license
  181  includes, but is not limited to:
  182         1. Articles of incorporation.
  183         2. A certificate of partnership, a partnership
  184  registration, or articles of organization.
  185         3. A grant of authority issued pursuant to state or federal
  186  law.
  187         4. A transaction privilege tax license.
  188         (g) “Unauthorized alien” means an alien is not authorized
  189  under federal law to be employed in the United States, as
  190  described in 8 U.S.C. s. 1324a(h)(3). This term shall be
  191  interpreted consistently with that section and any applicable
  192  federal rules or regulations.
  193         (h) “Knowingly employ an unauthorized alien” has the same
  194  meaning as prescribed in 8 U.S.C. s. 1324a. The term shall be
  195  interpreted consistently with s. 1324a and any federal rule or
  196  regulation applicable to the unlawful employment of aliens.
  197         (2) VERIFICATION OF EMPLOYMENT ELIGIBILITY; SUSPENSION OF
  198  BUSINESS LICENSE.—
  199         (a) Beginning January 1, 2013, every employer shall, after
  200  making an offer of employment which has been accepted by an
  201  employee, use the E-Verify system to verify the employment
  202  eligibility of the employee. Verification must occur within the
  203  period stipulated by federal law or regulations. However, an
  204  employer is not required to verify the employment eligibility of
  205  a continuing employee hired before the date of the employer’s
  206  registration with the system.
  207         (b) A business that has not complied with paragraph (a)
  208  shall lose its license to do business in this state until the
  209  business has registered with the E-Verify system and provided
  210  the department with an affidavit stating that the business has
  211  registered with the E-Verify system.
  212         (3) EMPLOYMENT OF UNAUTHORIZED ALIENS; PROHIBITION; FALSE
  213  AND FRIVOLOUS COMPLAINTS; VIOLATION; CLASSIFICATION; SUSPENSION
  214  AND REVOCATION OF LICENSE.—
  215         (a) An employer may not employ an unauthorized alien.
  216         (b) A person who has actual or constructive knowledge that
  217  an employer employs, or has within the last 90 days employed, an
  218  unauthorized alien may file a complaint with the department or
  219  the Department of Economic Opportunity.
  220         (c) A complaint may not be based on race, color, or
  221  national origin, except to the extent permitted by the United
  222  States Constitution or the State Constitution.
  223         (d) A person who knowingly files a false and frivolous
  224  complaint under this subsection commits a misdemeanor of the
  225  second degree, punishable as provided in s. 775.082 or s.
  226  775.083, Florida Statutes.
  227         (e) Upon the receipt of a valid complaint of a violation of
  228  paragraph (a), the department or the Department of Economic
  229  Opportunity shall notify the employer of the complaint and
  230  direct the employer to notify any affected employees named in
  231  the complaint.
  232         (f) The department or the Department of Economic
  233  Opportunity shall investigate whether a violation has occurred
  234  and hold an administrative hearing at which the employer may
  235  present any evidence he or she desires and at which the employer
  236  has the right to counsel. The department or the Department of
  237  Economic Opportunity shall request that the Federal Government
  238  verify, pursuant to 8 U.S.C. s. 1373(c), the employment status
  239  of any employee named in the complaint. The department or the
  240  Department of Economic Opportunity may not independently make a
  241  final determination as to whether a particular employee is an
  242  unauthorized alien. The department or the Department of Economic
  243  Opportunity shall rely upon verification of employment
  244  authorization provided by the Federal Government.
  245         (g) The department or the Department of Economic
  246  Opportunity may issue a subpoena to produce employment records
  247  that relate to the recruitment, hiring, employment, or
  248  termination policies, practices, or acts of employment relating
  249  to the investigation of a valid complaint.
  250         (h) If the department or the Department of Economic
  251  Opportunity confirms that the employer has employed an
  252  unauthorized alien, the department or the Department of Economic
  253  Opportunity shall notify:
  254         1. The United States Immigration and Customs Enforcement
  255  Agency of the identity of the unauthorized alien and, if known,
  256  the alien’s address or location in the state; and
  257         2. The local law enforcement agency of the presence of the
  258  unauthorized alien in the jurisdiction.
  259         (i) The department or the Department of Economic
  260  Opportunity may not act upon a complaint against any employer
  261  for any violation occurring before January 1, 2013.
  262         (j)1. Upon finding that an employer has violated paragraph
  263  (a), the department or the Department of Economic Opportunity
  264  shall order the employer to:
  265         a. Terminate the employment of all unauthorized aliens; and
  266         b. File a sworn affidavit with the department within 10
  267  days after the receipt of the order. The affidavit must state
  268  that the employer has corrected the violation by:
  269         (I) Terminating all known unauthorized alien’s employment;
  270         (II) Requesting that a second or additional verification of
  271  the alien’s employment status be authorized, by using the E
  272  Verify system; or
  273         (III) Attempting to terminate the unauthorized alien’s
  274  employment, and such termination has been challenged in a court
  275  of competent jurisdiction.
  276         2. If the employer fails to file the required affidavit,
  277  the department or the Department of Economic Opportunity shall
  278  order the appropriate agencies to suspend all applicable
  279  licenses held by the employer. All such licenses suspended shall
  280  remain suspended until the affidavit is filed. Notwithstanding
  281  any other law, the suspended licenses shall be deemed to have
  282  been reinstated upon the filing of the affidavit for the
  283  purposes of this section. During the pendency of an action, the
  284  10-day period shall be tolled. The 10-day period shall also be
  285  tolled during any period during which the Federal Government
  286  allows an alien to challenge the Federal Government’s
  287  determination of his or her immigration status or employment
  288  authorization.
  289         3. Licenses subject to suspension under this subsection
  290  include all licenses that are held by the employer and that are
  291  necessary to operate the employer’s business at the location at
  292  which the unauthorized alien performed work. If a license is not
  293  necessary to operate the employer’s business at the specific
  294  location at which the unauthorized alien performed work, but a
  295  license is necessary to operate the employer’s business in
  296  general, the licenses subject to suspension under subparagraph
  297  2. include all licenses held by the employer at the employer’s
  298  primary place of business.
  299         (k) Upon finding a second or subsequent violation of
  300  paragraph (a) during a 2-year period, the department or the
  301  Department of Economic Opportunity shall order the appropriate
  302  agencies to suspend, for at least 30 days, all licenses that are
  303  held by the employer and that are necessary to operate the
  304  employer’s business at the location at which the unauthorized
  305  alien performed work. If a license is not necessary to operate
  306  the employer’s business at the specific location at which the
  307  unauthorized alien performed work, but a license is necessary to
  308  operate the employer’s business in general, the department or
  309  the Department of Economic Opportunity shall order the
  310  appropriate agencies to suspend all licenses held by the
  311  employer at the employer’s primary place of business. On receipt
  312  of the order and notwithstanding any other law, the appropriate
  313  agencies shall immediately suspend such licenses for at least 30
  314  days.
  315         (l)1. An employer registered with and participating in the
  316  E-Verify system may not be held civilly liable in a cause of
  317  action for the employer’s:
  318         a. Unlawful hiring of an unauthorized alien if the
  319  information obtained in accordance with the E-Verify system
  320  indicated that the employee’s federal legal employment status
  321  allowed the employer to hire the employee; or
  322         b. Refusal to hire an individual if the information
  323  obtained in accordance with the E-Verify system indicated that
  324  the individual’s federal legal employment status was that of an
  325  unauthorized alien.
  326         2. Any employer who properly complies with the E-Verify
  327  system in good faith shall not be liable for any damages and
  328  shall be immune from any legal cause of action brought by any
  329  person or entity, including, but not limited to, former
  330  employees, for use and reliance upon any incorrect information
  331  provided by the E-Verify system when determining final action on
  332  an employee’s employment status.
  333         3. An employer is considered to have complied with the
  334  requirements of 8 U.S.C. s. 1324a(b), notwithstanding an
  335  isolated, sporadic, or accidental technical or procedural
  336  failure to meet the requirements, if there is a good faith
  337  attempt to comply with the requirements.
  338         (m) The Department of Economic Opportunity shall maintain a
  339  public database containing copies of all orders issued pursuant
  340  to this section and make such information available on its
  341  website.
  342         (n) If the department or the Department of Economic
  343  Opportunity determines that an agency or employer has failed to
  344  comply with an order under this section, the department or the
  345  Department of Economic Opportunity may apply to the circuit
  346  court for a judicial order directing the agency or employer to
  347  comply with the order of the department or Department of
  348  Economic Opportunity.
  349         (o) For the purposes of this section, compliance with
  350  subsection (2) creates a rebuttable presumption that an employer
  351  did not knowingly employ an unauthorized alien in violation of
  352  paragraph (a).
  353         (4) INJUNCTION.—At any time after the department or the
  354  Department of Economic Opportunity has notified an employer that
  355  a valid complaint was received and up to 30 days after the date
  356  of service on the employer of the notice of determination by the
  357  department or the Department of Economic Opportunity that the
  358  employer violated paragraph (3)(a), the employer subject to the
  359  complaint under this section, or any employee of the employer
  360  who is alleged to be an unauthorized alien, may challenge and
  361  seek to enjoin the enforcement of this section before a court of
  362  competent jurisdiction.
  363         (5) DECEPTIVE AND UNFAIR TRADE PRACTICE.—
  364         (a) An employer commits a deceptive and unfair trade
  365  practice in violation of part II of chapter 501, Florida
  366  Statutes, if he or she discharges a United States citizen or
  367  legal permanent resident alien employee who has applied for
  368  naturalization, if, on the date of discharge, an unauthorized
  369  alien worker was employed by the employer at the same job site
  370  or in the same job classification elsewhere in the state, if
  371  such discharge is made knowingly or with reckless disregard for
  372  the fact that such alien worker lacked federal employment
  373  authorization.
  374         (b) The discharged employee has a private cause of action
  375  against the employer for civil penalties and attorney fees for
  376  the deceptive and unfair trade practice.
  377         (c) The available remedies to a wrongfully discharged
  378  employee are limited to reinstatement, back pay, court costs,
  379  and attorney fees. Criminal or civil sanctions, including fines,
  380  shall not be imposed against an employer for a violation of this
  381  subsection.
  382         (d) A cause of action under this subsection does not exist
  383  against an employer who, on the date of discharge, was enrolled
  384  and participating in the E-Verify system and used the system to
  385  verify the employee hired on the date of discharge who was an
  386  unauthorized alien worker employed by the employer at the same
  387  job site or in the same job classification elsewhere in the
  388  state.
  389         (6) CONSTRUCTION.—This section shall be enforced without
  390  regard to race or national origin and shall be construed in a
  391  manner so as to be fully consistent with any applicable
  392  provisions of federal law.
  393         Section 2. Section 287.136, Florida Statutes, is created to
  394  read:
  395         287.136 Verification of immigration status; public
  396  employers.—
  397         (1) As used in the section, the term:
  398         (a) “Contractor” means a person who has entered or is
  399  attempting to enter into a public contract for services with a
  400  state agency or political subdivision.
  401         (b) “E-Verify system” means the electronic verification of
  402  the work-authorization program of the Illegal Immigration Reform
  403  and Immigration Responsibility Act of 1996, Pub. L. No. 104-208,
  404  Division C, Title IV, s. 403(a), as amended, and operated by the
  405  United States Department of Homeland Security, or a successor
  406  work-authorization program designated by the department or other
  407  federal agency authorized to verify the work-authorization
  408  status of newly hired employees pursuant to the Immigration
  409  Reform and Control Act of 1986, Pub. L. No. 99-603.
  410         (c) “Public employer” means any department, agency, or
  411  political subdivision of the state.
  412         (d) “Subcontractor” means any supplier, distributor,
  413  vendor, staffing agency, or firm furnishing supplies or services
  414  to or for a contractor or another subcontractor.
  415         (e) “Unauthorized alien” means an alien is not authorized
  416  under federal law to be employed in the United States, as
  417  described in 8 U.S.C. s. 1324a(h)(3). This term shall be
  418  interpreted consistently with that section and any applicable
  419  federal rules or regulations.
  420         (2)(a) Every public employer shall register with and
  421  participate in the E-Verify system for the purpose of verifying
  422  the work authorization status of all new employees.
  423         (b)1. A public employer may not enter into a contract for
  424  the physical performance of services within this state unless
  425  the contractor registers and participates in the E-Verify
  426  system.
  427         2. A contractor or subcontractor may not enter into a
  428  contract or subcontract with a public employer in connection
  429  with the physical performance of services within this state
  430  unless the contractor or subcontractor registers with and uses
  431  the E-Verify system for the purpose of verifying information of
  432  all new employees employed within the state.
  433         (3)(a) If a contractor uses a subcontractor, the
  434  subcontractor shall certify to the contractor in a manner that
  435  does not violate federal law that the subcontractor, at the time
  436  of certification, does not employ or contract with an
  437  unauthorized alien.
  438         (b) A contractor shall maintain a copy of the certification
  439  of a subcontractor throughout the duration of the term of a
  440  contract with the subcontractor.
  441         (4)(a) If a contractor knows that a subcontractor is in
  442  violation of this section, the contractor shall terminate a
  443  contract with the subcontractor for the violation.
  444         (b) A contract terminated pursuant to paragraph (a) is not
  445  a breach of contract and may not be considered as such by the
  446  contractor or the subcontractor.
  447         (c) A subcontractor may file an action with a circuit or
  448  county court having jurisdiction in the county to challenge a
  449  termination of a contract under paragraph (a) no later than 20
  450  days after the date on which the contractor terminates the
  451  contract with the subcontractor.
  452         (5)(a) If a public employer knows that a contractor is
  453  knowingly in violation of this section, the public employer
  454  shall immediately terminate the contract with the contractor and
  455  the contractor is not eligible for public contracts for 1 year
  456  after the date of termination. If the public employer has
  457  knowledge that a subcontractor has violated this section, and
  458  the contractor has otherwise complied with this section, the
  459  public employer shall promptly notify the contractor and order
  460  the contractor to terminate the contract with the noncompliant
  461  subcontractor.
  462         (b) A contract terminated pursuant to paragraph (a) is not
  463  a breach of contract and may not be considered as such by the
  464  contractor or subcontractor.
  465         (c) A contractor or subcontractor may file an action with a
  466  circuit or county court having jurisdiction in the county to
  467  challenge a termination of a contract under paragraph (a) no
  468  later than 20 days after the date on which the contract or
  469  subcontract was terminated.
  470         (6) The provisions of this section shall be construed in a
  471  manner so as to be fully consistent with any applicable federal
  472  law.
  473         Section 3. Section 337.163, Florida Statutes, is created to
  474  read:
  475         337.163 Verification of immigration status.—
  476         (1) As used in this section, the term:
  477         (a) “Contractor” means a person who has entered or is
  478  attempting to enter into a contract with the department for
  479  services under this chapter.
  480         (b) “E-Verify system” means the electronic verification of
  481  the work-authorization program of the Illegal Immigration Reform
  482  and Immigration Responsibility Act of 1996, Pub. L. No. 104-208,
  483  Division C, Title IV, s. 403(a), as amended, and operated by the
  484  United States Department of Homeland Security, or a successor
  485  work-authorization program designated by the department or other
  486  federal agency authorized to verify the work-authorization
  487  status of newly hired employees pursuant to the Immigration
  488  Reform and Control Act of 1986, Pub. L. No. 99-603.
  489         (c) “Subcontractor” means any supplier, distributor,
  490  vendor, staffing agency, or firm furnishing supplies or services
  491  to or for a contractor or another subcontractor under this
  492  chapter.
  493         (d) “Unauthorized alien” means an alien is not authorized
  494  under federal law to be employed in the United States, as
  495  described in 8 U.S.C. s. 1324a(h)(3). This term shall be
  496  interpreted consistently with that section and any applicable
  497  federal rules or regulations.
  498         (2)(a) The department shall register with and participate
  499  in the E-Verify system for the purpose of verifying the work
  500  authorization status of all new employees.
  501         (b)1. The department may not enter into a contract for the
  502  physical performance of services within this state unless the
  503  contractor registers and participates in the E-Verify system.
  504         2. A contractor or subcontractor may not enter into a
  505  contract or subcontract with the department in connection with
  506  the physical performance of services within this state unless
  507  the contractor or subcontractor registers with and uses the E
  508  Verify system for the purpose of verifying information of all
  509  new employees employed within the state.
  510         (3)(a) If a contractor uses a subcontractor, the
  511  subcontractor shall certify to the contractor in a manner that
  512  does not violate federal law that the subcontractor, at the time
  513  of certification, does not employ or contract with an
  514  unauthorized alien.
  515         (b) A contractor shall maintain a copy of the certification
  516  of a subcontractor throughout the duration of the term of a
  517  contract with the subcontractor.
  518         (4)(a) If a contractor knows that a subcontractor is in
  519  violation of this section, the contractor shall terminate a
  520  contract with the subcontractor for the violation.
  521         (b) A contract terminated pursuant to paragraph (a) is not
  522  a breach of contract and may not be considered as such by the
  523  contractor or the subcontractor.
  524         (c) A subcontractor may file an action with a circuit or
  525  county court having jurisdiction in the county to challenge a
  526  termination of a contract under paragraph (a) no later than 20
  527  days after the date on which the contractor terminates the
  528  contract with the subcontractor.
  529         (5)(a) If the department knows that a contractor is
  530  knowingly in violation of this section, the department shall
  531  immediately terminate the contract with the contractor and the
  532  contractor is not eligible for public contracts for 1 year after
  533  the date of termination. If the department has knowledge that a
  534  subcontractor has violated this section, and the contractor has
  535  otherwise complied with this section, the department shall
  536  promptly notify the contractor and order the contractor to
  537  terminate the contract with the noncompliant subcontractor.
  538         (b) A contract terminated pursuant to paragraph (a) is not
  539  a breach of contract and may not be considered as such by the
  540  contractor or subcontractor.
  541         (c) A contractor or subcontractor may file an action with a
  542  circuit or county court having jurisdiction in the county to
  543  challenge a termination of a contract under paragraph (a) no
  544  later than 20 days after the date on which the contract or
  545  subcontract was terminated.
  546         (6) The provisions of this section shall be construed in a
  547  manner so as to be fully consistent with any applicable federal
  548  law.
  549         Section 4. If any provision of this act or its application
  550  to any person or circumstance is held invalid, the invalidity
  551  does not affect the remaining provisions or applications of the
  552  act which can be given effect without the invalid provision or
  553  application, and to this end the provisions of this act are
  554  severable.
  555         Section 5. This act shall take effect July 1, 2012.