| 1 | A bill to be entitled |
| 2 | An act relating to the verification of employment |
| 3 | eligibility; defining terms; requiring every employer to |
| 4 | use the Employment Authorization Program to verify the |
| 5 | employment eligibility of each employee on or after a |
| 6 | specified date; providing that a business that does not |
| 7 | use the E-Verify system to verify the employment |
| 8 | eligibility of the employee shall lose its license to do |
| 9 | business in this state until the business has registered |
| 10 | with the E-verify system; requiring that each verification |
| 11 | be made in accordance with certain provisions of federal |
| 12 | law; prohibiting an employer from employing an |
| 13 | unauthorized alien; authorizing certain persons to file a |
| 14 | complaint with the Department of Business and Professional |
| 15 | Regulation or the Agency for Workforce Innovation alleging |
| 16 | that an employer has employed an unauthorized alien; |
| 17 | prohibiting the filing of a complaint based on race, |
| 18 | color, or national origin; providing that a person who |
| 19 | knowingly files a false and frivolous complaint commits a |
| 20 | misdemeanor of the second degree; providing criminal |
| 21 | penalties; requiring the department or the Agency for |
| 22 | Workforce Innovation to notify the employer upon receipt |
| 23 | of a complaint; requiring the department or the Agency for |
| 24 | Workforce Innovation to investigate whether a violation |
| 25 | has occurred; authorizing the department and the Agency |
| 26 | for workforce Innovation to issue a subpoena for the |
| 27 | production of documents; requiring the department or the |
| 28 | Agency for Workforce Innovation to request that the |
| 29 | Federal Government verify the employment eligibility of |
| 30 | any employee named in a complaint; prohibiting the |
| 31 | department or the Agency for Workforce Innovation from |
| 32 | independently making a final determination regarding |
| 33 | whether an employee is authorized to be employed in the |
| 34 | United States; requiring the department or the Agency for |
| 35 | Workforce Innovation to notify certain entities after |
| 36 | determining that the employer has employed an unauthorized |
| 37 | alien; prohibiting the department or the Agency for |
| 38 | Workforce Innovation from acting on a complaint for a |
| 39 | violation of law occurring before a specified date; |
| 40 | requiring the department or the Agency for Workforce |
| 41 | Innovation to order an employer to take certain action |
| 42 | upon a first violation of the prohibition against hiring |
| 43 | an unauthorized alien; requiring that certain licenses of |
| 44 | an employer be suspended if the employer fails to file an |
| 45 | affidavit confirming the termination of employment of an |
| 46 | unauthorized alien; providing for reinstatement of such |
| 47 | licenses under certain circumstances; requiring that the |
| 48 | department or the Agency for Workforce Innovation take |
| 49 | certain action against an employer for a second violation |
| 50 | within a specified period following the prohibition |
| 51 | against hiring an unauthorized alien; requiring the Agency |
| 52 | for Workforce Innovation to maintain a public database |
| 53 | containing certain information and make such information |
| 54 | available on its website; authorizing the department or |
| 55 | the Agency for Workforce Innovation to apply to the |
| 56 | appropriate circuit court for a judicial order directing |
| 57 | an employer to comply with an order issued by the |
| 58 | department or the Agency for Workforce Innovation; |
| 59 | creating a rebuttable presumption for certain employers |
| 60 | that the employer did not knowingly employ an unauthorized |
| 61 | alien; authorizing an employer or employee to seek an |
| 62 | injunction under certain circumstances; providing that |
| 63 | certain actions by an employer constitute an unfair trade |
| 64 | practice; providing that an employee aggrieved by such |
| 65 | actions has a private cause of action against the employer |
| 66 | for a deceptive and unfair trade practice; providing for |
| 67 | an award of court costs and attorney's fees; providing |
| 68 | that a cause of action does not exist against an employer |
| 69 | participating in the E-Verify system on the date of such |
| 70 | actions; providing for construction of the act; creating |
| 71 | s. 287.135, F.S.; defining terms; requiring every public |
| 72 | employer to register with and participate in the E-Verify |
| 73 | system for specified purposes; prohibiting a public |
| 74 | employer, contractor, or subcontractor from entering into |
| 75 | a contract for the physical performance of services in |
| 76 | this state unless the contractor or subcontractor |
| 77 | registers and participates in the system; requiring that |
| 78 | subcontractors certify certain information to contractors |
| 79 | by specified means; requiring that a contractor maintain a |
| 80 | copy of the certification for a specified period; |
| 81 | authorizing a contractor to terminate a contract with a |
| 82 | subcontractor under certain conditions; providing that |
| 83 | such termination is not a breach of contract; authorizing |
| 84 | a subcontractor to challenge a termination within a |
| 85 | specified period; requiring that a public contractor |
| 86 | terminate a contract if the contractor or subcontractor is |
| 87 | in violation of the act; providing that such termination |
| 88 | is not a breach of contract; authorizing a contractor or |
| 89 | subcontractor to challenge such a termination within a |
| 90 | specified period; providing guidelines for interpretation |
| 91 | of the provisions of the act; providing for severability; |
| 92 | providing an effective date. |
| 93 |
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| 94 | Be It Enacted by the Legislature of the State of Florida: |
| 95 |
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| 96 | Section 1. Use of E-verify system required for private |
| 97 | employers; business licensing enforcement; private right of |
| 98 | action for displaced worker.- |
| 99 | (1) DEFINITIONS.-As used in this section, the term: |
| 100 | (a) "Agency" means an agency, department, board, or |
| 101 | commission of this state or a county, municipality, or town |
| 102 | issuing a license for the purpose of operating a business in |
| 103 | this state. |
| 104 | (b) "Department" means the Department of Business and |
| 105 | Professional Regulation. |
| 106 | (c) "E-Verify system" means the Employment Authorization |
| 107 | Program, formerly the "Basic Pilot Program," under Pub. L. No. |
| 108 | 104-208, Div. C, Title IV, Subtitle A, 110 Stat. 3009-655 (Sept. |
| 109 | 30, 1996), as amended, or any successor program designated by |
| 110 | the Federal Government for verification that an employee is an |
| 111 | employment-authorized alien. |
| 112 | (d) "Employee" means any person who performs employment |
| 113 | services in this state for an employer pursuant to an employment |
| 114 | relationship between the person and employer. An employee does |
| 115 | not include an independent contractor. |
| 116 | (e) "Employer" means any individual or type of |
| 117 | organization transacting business in this state which holds or |
| 118 | has applied for a license issued by an agency and employs |
| 119 | individuals who perform employment services. The term does not |
| 120 | include an entity that hires an independent contractor to |
| 121 | perform work or the occupant or owner of a private residence who |
| 122 | hires casual domestic labor to perform work customarily |
| 123 | performed by a homeowner entirely within a private residence. |
| 124 | (f) "License" means a license, permit, certificate, |
| 125 | approval, registration, charter, or similar form of |
| 126 | authorization required by law and issued by an agency for the |
| 127 | purpose of operating a business. A license includes, but is not |
| 128 | limited to: |
| 129 | 1. Articles of incorporation. |
| 130 | 2. A certificate of partnership, a partnership |
| 131 | registration, or articles of organization. |
| 132 | 3. A grant of authority issued pursuant to state or |
| 133 | federal law. |
| 134 | 4. A transaction privilege tax license. |
| 135 | (g) "Unauthorized alien" means an alien is not authorized |
| 136 | under federal law to be employed in the United States, as |
| 137 | described in 8 U.S.C. 1324a(h)(3). This term shall be |
| 138 | interpreted consistently with that section and any applicable |
| 139 | federal rules or regulations. |
| 140 | (h) "Knowingly employ an unauthorized alien" has the same |
| 141 | meaning as prescribed in 8 U.S.C. 1324a. The term shall be |
| 142 | interpreted consistently with s. 1324a and any federal rule or |
| 143 | regulation applicable to the unlawful employment of aliens. |
| 144 | (2) VERIFICATION OF EMPLOYMENT ELIGIBILITY; SUSPENSION OF |
| 145 | BUSINESS LICENSE.- |
| 146 | (a) Beginning January 1, 2012, every employer shall, after |
| 147 | making an offer of employment which has been accepted by an |
| 148 | employee, use the E-Verify system to verify the employment |
| 149 | eligibility of the employee. Verification must occur within the |
| 150 | period stipulated by federal law or regulations after the hiring |
| 151 | of the employee. However, an employer is not required to verify |
| 152 | the employment eligibility of a continuing employee hired before |
| 153 | the date of the employer's registration with the system. |
| 154 | (b) A business that has not complied with paragraph (a) |
| 155 | shall lose its license to do business in this state until the |
| 156 | business has registered with the E-verify system and provided |
| 157 | the department with an affidavit stating that the business has |
| 158 | registered with the E-verify system. |
| 159 | (3) EMPLOYMENT OF UNAUTHORIZED ALIENS; PROHIBITION; FALSE |
| 160 | AND FRIVOLOUS COMPLAINTS; VIOLATION; CLASSIFICATION; SUSPENSION |
| 161 | AND REVOCATION OF LICENSE.- |
| 162 | (a) An employer may not employ an unauthorized alien. |
| 163 | (b) A person who has actual or constructive knowledge that |
| 164 | an employer employs, or has within the last 90 days employed, an |
| 165 | unauthorized alien may file a complaint with the department or |
| 166 | the Agency for Workforce Innovation. |
| 167 | (c) A complaint may not be based on race, color, or |
| 168 | national origin, except to the extent permitted by the United |
| 169 | States Constitution or the State Constitution. |
| 170 | (d) A person who knowingly files a false and frivolous |
| 171 | complaint under this subsection commits a misdemeanor of the |
| 172 | second degree, punishable as provided in s. 775.082 or s. |
| 173 | 775.083. |
| 174 | (e) Upon the receipt of a valid complaint of a violation |
| 175 | of paragraph (a), the department or the Agency for Workforce |
| 176 | Innovation shall notify the employer of the complaint and direct |
| 177 | the employer to notify any affected employees named in the |
| 178 | complaint. |
| 179 | (f) The department or the Agency for Workforce Innovation |
| 180 | shall investigate whether a violation has occurred and hold an |
| 181 | administrative hearing at which the employer may present any |
| 182 | evidence he or she desires and at which the employer has the |
| 183 | right to counsel. The department or the Agency for Workforce |
| 184 | Innovation shall request that the Federal Government verify, |
| 185 | pursuant to 8 U.S.C. 1373(c), the employment status of any |
| 186 | employee named in the complaint. The department or Agency for |
| 187 | Workforce Innovation may not independently make a final |
| 188 | determination as to whether a particular employee is an |
| 189 | unauthorized alien. The department or agency shall rely upon |
| 190 | verification of employment authorization provided by the Federal |
| 191 | Government. |
| 192 | (g) The department or agency may issue a subpoena to |
| 193 | produce employment records that relate to the recruitment, |
| 194 | hiring, employment, or termination policies, practices, or acts |
| 195 | of employment relating to the investigation of a valid |
| 196 | complaint. |
| 197 | (h) If the department or Agency for Workforce Innovation |
| 198 | confirms that the employer has employed an unauthorized alien, |
| 199 | the department or agency shall notify: |
| 200 | 1. The United States Immigration and Customs Enforcement |
| 201 | Agency of the identity of the unauthorized alien and, if known, |
| 202 | the alien's address or location in the state; and |
| 203 | 2. The local law enforcement agency of the presence of the |
| 204 | unauthorized alien in the jurisdiction. |
| 205 | (i) The department or Agency for Workforce Innovation may |
| 206 | not act upon a complaint against any employer for any violation |
| 207 | occurring before January 1, 2012. |
| 208 | (j)1. Upon finding that an employer has violated paragraph |
| 209 | (a), the department or Agency for Workforce Innovation shall |
| 210 | order the employer to: |
| 211 | a. Terminate the employment of all unauthorized aliens; |
| 212 | and |
| 213 | b. File a sworn affidavit with the department within 10 |
| 214 | days after the receipt of the order. The affidavit must state |
| 215 | that the employer has corrected the violation by: |
| 216 | (I) Terminating the unauthorized alien's employment; |
| 217 | (II) Requesting that a second or additional verification |
| 218 | of the alien's employment status be authorized, by using the E- |
| 219 | Verify system; or |
| 220 | (III) Attempting to terminate the unauthorized alien's |
| 221 | employment, and such termination has been challenged in a court |
| 222 | of competent jurisdiction. |
| 223 | 2. If the employer fails to file the required affidavit, |
| 224 | the department or Agency for Workforce Innovation shall order |
| 225 | the appropriate agencies to suspend all applicable licenses held |
| 226 | by the employer. All such licenses suspended shall remain |
| 227 | suspended until the affidavit is filed. |
| 228 |
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| 229 | Notwithstanding any other law, the suspended licenses shall be |
| 230 | deemed to have been reinstated upon the filing of the affidavit. |
| 231 | During the pendency of an action, the 10-day period shall be |
| 232 | tolled. The 10-day period shall also be tolled during any period |
| 233 | during which the Federal Government allows an alien to challenge |
| 234 | the Federal Government's determination of his or her immigration |
| 235 | status or employment authorization. |
| 236 | 3. Licenses subject to suspension under this subsection |
| 237 | include all licenses that are held by the employer and that are |
| 238 | necessary to operate the employer's business at the location at |
| 239 | which the unauthorized alien performed work. If a license is not |
| 240 | necessary to operate the employer's business at the specific |
| 241 | location at which the unauthorized alien performed work, but a |
| 242 | license is necessary to operate the employer's business in |
| 243 | general, the licenses subject to suspension under subparagraph |
| 244 | 2. include all licenses held by the employer at the employer's |
| 245 | primary place of business. |
| 246 | 4. The department shall adopt rules pursuant to ss. |
| 247 | 120.536(1) and 120.54, Florida Statutes, by July 1, 2011, to |
| 248 | establish procedures for an agency to exempt certain licenses |
| 249 | issued by the agency which the agency determines, with the |
| 250 | concurrence of the department, are unrelated to operating a |
| 251 | business in this state. |
| 252 | (k) Upon finding a second or subsequent violation of |
| 253 | paragraph (a) during a 2-year period, the department or the |
| 254 | Agency for Workforce Innovation shall order the appropriate |
| 255 | agencies to suspend, for at least 30 days, all licenses that are |
| 256 | held by the employer and that are necessary to operate the |
| 257 | employer's business at the location at which the unauthorized |
| 258 | alien performed work. If a license is not necessary to operate |
| 259 | the employer's business at the specific location at which the |
| 260 | unauthorized alien performed work, but a license is necessary to |
| 261 | operate the employer's business in general, the department or |
| 262 | the Agency for Workforce Innovation shall order the appropriate |
| 263 | agencies to suspend all licenses held by the employer at the |
| 264 | employer's primary place of business. On receipt of the order |
| 265 | and notwithstanding any other law, the appropriate agencies |
| 266 | shall immediately suspend such licenses for at least 30 days. |
| 267 | (l) The Agency for Workforce Innovation shall maintain a |
| 268 | public database containing copies of all orders issued pursuant |
| 269 | to this section and make such information available on its |
| 270 | website. |
| 271 | (m) If the department or the Agency for Workforce |
| 272 | Innovation determines that an agency or employer has failed to |
| 273 | comply with an order under this section, the department or the |
| 274 | Agency for Workforce Innovation may apply to the circuit court |
| 275 | for a judicial order directing the agency or employer to comply |
| 276 | with the order of the department or Agency for Workforce |
| 277 | Innovation. |
| 278 | (n) For the purposes of this section, compliance with |
| 279 | subsection (2) creates a rebuttable presumption that an employer |
| 280 | did not knowingly employ an unauthorized alien in violation of |
| 281 | paragraph (a). |
| 282 | (4) INJUNCTION.-At any time after a complaint is received, |
| 283 | an employer subject to a complaint under this section, or any |
| 284 | employee of the employer who is alleged to be an unauthorized |
| 285 | alien, may challenge and seek to enjoin the enforcement of this |
| 286 | section before a court of competent jurisdiction. |
| 287 | (5) DECEPTIVE AND UNFAIR TRADE PRACTICE.- |
| 288 | (a) An employer commits a deceptive and unfair trade |
| 289 | practice in violation of part II of chapter 501, Florida |
| 290 | Statutes, if he or she discharges an United States citizen or |
| 291 | legal permanent resident alien employee who has applied for |
| 292 | naturalization, if, on the date of discharge, an unauthorized |
| 293 | alien worker was employed by the employer at the same job site |
| 294 | or in the same job classification elsewhere in the state. |
| 295 | (b) The discharged employee has a cause of action against |
| 296 | the employer for civil penalties and attorney's fees for the |
| 297 | deceptive and unfair trade practice. |
| 298 | (c) The wrongfully discharged employee is entitled to |
| 299 | reinstatement, back pay, court costs, and attorney's fees. |
| 300 | Criminal or civil sanctions, including fines, shall not be |
| 301 | imposed against an employer for a violation of this subsection. |
| 302 | (d) A cause of action under this subsection does not exist |
| 303 | against an employer who, on the date of discharge, was enrolled |
| 304 | and participating in the E-Verify system. |
| 305 | (6) CONSTRUCTION.-This section shall be enforced without |
| 306 | regard to race or national origin and shall be construed in a |
| 307 | manner so as to be fully consistent with any applicable |
| 308 | provisions of federal law. |
| 309 | Section 2. Section 287.135, Florida Statutes, is created |
| 310 | to read: |
| 311 | 287.135 Verification of immigration status; public |
| 312 | employers.- |
| 313 | (1) As used in the section, the term: |
| 314 | (a) "Contractor" means a person who has entered or is |
| 315 | attempting to enter into a public contract for services with a |
| 316 | state agency or political subdivision. |
| 317 | (b) "E-Verify system" means the system for electronic |
| 318 | verification of the work-authorization program of the Illegal |
| 319 | Immigration Reform and Immigration Responsibility Act of 1996, |
| 320 | Pub. L. No. 104-208, Division C, Title IV, s. 403(a), as |
| 321 | amended, and operated by the United States Department of |
| 322 | Homeland Security, or a successor work-authorization program |
| 323 | designated by the department or other federal agency authorized |
| 324 | to verify the work-authorization status of newly hired employees |
| 325 | pursuant to the Immigration Reform and Control Act of 1986, Pub. |
| 326 | L. No. 99-603. |
| 327 | (c) "Public employer" means any department, agency, or |
| 328 | political subdivision of the state. |
| 329 | (d) "Subcontractor" means any supplier, distributor, |
| 330 | vendor, or firm furnishing supplies or services to or for a |
| 331 | contractor or another subcontractor. |
| 332 | (2)(a) Every public employer shall register with and |
| 333 | participate in the E-Verify system for the purpose of verifying |
| 334 | the work authorization status of all new employees. |
| 335 | (b)1. A public employer may not enter into a contract for |
| 336 | the physical performance of services unless the contractor |
| 337 | registers and participates in the E-Verify system. |
| 338 | 2. A contractor or subcontractor may not enter into a |
| 339 | contract or subcontract with a public employer in connection |
| 340 | with the physical performance of services unless the contractor |
| 341 | or subcontractor registers with and uses the E-Verify system for |
| 342 | the purpose of verifying information of all new employees |
| 343 | employed within the state. |
| 344 | (3)(a) If a contractor uses a subcontractor, the |
| 345 | subcontractor shall certify to the contractor in a manner that |
| 346 | does not violate federal law that the subcontractor, at the time |
| 347 | of certification, does not employ or contract with an |
| 348 | unauthorized alien. |
| 349 | (b) A contractor shall maintain a copy of the |
| 350 | certification of a subcontractor throughout the duration of the |
| 351 | term of a contract with the subcontractor. |
| 352 | (4)(a) If a contractor knows that a subcontractor is in |
| 353 | violation of this section, the contractor shall terminate a |
| 354 | contract with the subcontractor for the violation. |
| 355 | (b) A contract terminated pursuant to paragraph (a) is not |
| 356 | a breach of contract and may not be considered as such by the |
| 357 | contractor or the subcontractor. |
| 358 | (c) A subcontractor may file an action with a circuit or |
| 359 | county court having jurisdiction in the county to challenge a |
| 360 | termination of a contract under paragraph (a) no later than 20 |
| 361 | days after the date on which the contractor terminates the |
| 362 | contract with the subcontractor. |
| 363 | (5)(a) If a public employer knows that a contractor is |
| 364 | knowingly in violation of this section, the public employer |
| 365 | shall immediately terminate the contract with the contractor and |
| 366 | the contractor is not eligible for public contracts for 1 year |
| 367 | after the date of termination. If the public employer has |
| 368 | knowledge that a subcontractor has violated this section, and |
| 369 | the contractor has otherwise complied with this section, the |
| 370 | public employer shall promptly notify the contractor and order |
| 371 | the contractor to terminate the contract with the noncompliant |
| 372 | subcontractor. |
| 373 | (b) A contract terminated pursuant to paragraph (a) is not |
| 374 | a breach of contract and may not be considered as such by the |
| 375 | contractor or subcontractor. |
| 376 | (c) A contractor or subcontractor may file an action with |
| 377 | a circuit or county court having jurisdiction in the county to |
| 378 | challenge a termination of a contract under paragraph (a) no |
| 379 | later than 20 days after the date on which the contract or |
| 380 | subcontract was terminated. |
| 381 | (6) The provisions of this section shall be construed in a |
| 382 | manner so as to be fully consistent with any applicable federal |
| 383 | law. |
| 384 | Section 3. If any provision of this act or its application |
| 385 | to any person or circumstance is held invalid, the invalidity |
| 386 | does not affect the remaining provisions or applications of the |
| 387 | act which can be given effect without the invalid provision or |
| 388 | application, and to this end the provisions of this act are |
| 389 | severable. |
| 390 | Section 4. This act shall take effect July 1, 2011. |