Florida Senate - 2019 SB 164 By Senator Bean 4-00560-19 2019164__ 1 A bill to be entitled 2 An act relating to the verification of employment 3 eligibility; defining terms; requiring employers to 4 register with and use the E-Verify system beginning on 5 a specified date to verify the employment eligibility 6 of new employees; requiring the Department of Economic 7 Opportunity to order certain agencies to suspend an 8 employer’s license under certain circumstances; 9 prohibiting an employer from knowingly employing an 10 unauthorized alien; authorizing certain persons to 11 file a specified complaint with the department; 12 prohibiting the filing of a complaint based on race, 13 color, or national origin; providing that a person who 14 knowingly files a false or frivolous complaint commits 15 a misdemeanor of the second degree; providing 16 responsibilities and powers of the department relating 17 to notice, investigations, and subpoenas for the 18 production of records; prohibiting the department from 19 independently making a final determination regarding 20 whether an employee is an unauthorized alien; 21 requiring the department to notify the United States 22 Immigration and Customs Enforcement Agency and 23 specified law enforcement agencies of certain 24 violations; requiring the department to order certain 25 employers to take specified actions after the finding 26 of a violation; providing for the suspension of an 27 employer’s license upon the finding of certain 28 violations; providing civil immunity for an employer 29 registered with and using the E-Verify system; 30 providing specified immunity and nonliability for an 31 employer who complies in good faith with the E-Verify 32 system; requiring the department to maintain a public 33 database containing certain information and make such 34 information available on its website; authorizing the 35 department to apply for a judicial order directing an 36 agency or employer to comply with an order issued by 37 the department; creating a rebuttable presumption for 38 certain employers that the employer did not knowingly 39 employ an unauthorized alien; authorizing an employer 40 or employee to seek an injunction under certain 41 circumstances; providing that certain actions by an 42 employer constitute a deceptive and unfair trade 43 practice; providing that an employee aggrieved by such 44 actions has a private cause of action against the 45 employer and providing available remedies; providing 46 that a cause of action does not exist against an 47 employer under specified circumstances; providing 48 construction; creating s. 287.137, F.S.; defining 49 terms; requiring public employers, contractors, and 50 subcontractors to register with and use the E-Verify 51 system; prohibiting such entities from entering into a 52 contract unless each party to the contract registers 53 with and uses the E-Verify system; requiring a 54 subcontractor to provide certain certification to a 55 contractor, which the contractor must maintain for a 56 specified period of time; authorizing the termination 57 of a contract under certain conditions; providing that 58 such termination is not a breach of contract; 59 authorizing a challenge to such termination; 60 prohibiting a contractor from being awarded a public 61 contract under certain circumstances; providing 62 construction; providing an effective date. 63 64 Be It Enacted by the Legislature of the State of Florida: 65 66 Section 1. Definitions; use of E-Verify system required for 67 private employers; business licensing enforcement; private right 68 of action for wrongfully discharged employee.— 69 (1) DEFINITIONS.—As used in this section, the term: 70 (a) “Agency” means an agency, department, board, or 71 commission of this state or a county, municipality, or town 72 issuing a license to operate a business in this state. 73 (b) “Department” means the Department of Economic 74 Opportunity. 75 (c) “E-Verify system” means an Internet-based system 76 operated by the United States Department of Homeland Security 77 that allows participating employers to electronically verify the 78 employment eligibility of newly hired employees. 79 (d) “Employee” means a person who performs labor or 80 services for an employer in exchange for salary, wages, or other 81 remuneration. The term does not include a licensed independent 82 contractor as defined in federal laws or regulations. 83 (e) “Employer” means a person or entity that employs 84 persons to perform labor or services in exchange for salary, 85 wages, or other remuneration. The term does not include: 86 1. A government employer; 87 2. The occupant or owner of a private residence who hires: 88 a. Casual labor, as defined in s. 443.036, Florida 89 Statutes, to be performed entirely within the private residence; 90 or 91 b. A licensed independent contractor, as defined in federal 92 laws or regulations, to perform a specified portion of labor or 93 services; or 94 3. An employee leasing company licensed pursuant to part XI 95 of chapter 468 that enters into a written agreement or 96 understanding with a client company which places the primary 97 obligation for compliance with this section upon the client 98 company. In the absence of a written agreement or understanding, 99 the term includes an employee leasing company. 100 (f) “Knowingly employ an unauthorized alien” has the same 101 meaning as in 8 U.S.C. s. 1324a. The term shall be interpreted 102 consistently with 8 U.S.C. s. 1324a and any applicable federal 103 rules or regulations. 104 (g) “License” means a franchise, permit, certificate, 105 approval, registration, charter, or similar form of 106 authorization required by state law and issued by an agency for 107 the purpose of operating a business in this state. The term 108 includes, but is not limited to: 109 1. An article of incorporation. 110 2. A certificate of partnership, partnership registration, 111 or article of organization. 112 3. A grant of authority issued pursuant to state or federal 113 law. 114 4. A transaction privilege tax license. 115 (h) “Unauthorized alien” means a person who is not 116 authorized under federal law to be employed in the United 117 States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall 118 be interpreted consistently with that section and any applicable 119 federal rules or regulations. 120 (2) VERIFICATION OF EMPLOYMENT ELIGIBILITY; SUSPENSION OF 121 BUSINESS LICENSE.— 122 (a) Beginning January 1, 2020, an employer shall, after 123 making an offer of employment which has been accepted by a 124 person, use the E-Verify system to verify such person’s 125 employment eligibility. Verification must occur within the 126 period stipulated by applicable federal rules or regulations. 127 However, an employer is not required to verify the employment 128 eligibility of a continuing employee hired before the date of 129 the employer’s registration with the E-Verify system. 130 (b) If an employer does not register with the E-Verify 131 system, the department must order the appropriate agency to 132 suspend all applicable licenses held by the employer until the 133 employer registers with the E-Verify system and provides the 134 department with an affidavit stating such fact. 135 (3) EMPLOYMENT OF UNAUTHORIZED ALIENS; PROHIBITION; FALSE 136 AND FRIVOLOUS COMPLAINTS; VIOLATION; CLASSIFICATION; SUSPENSION 137 AND REVOCATION OF LICENSE.—Beginning January 1, 2020: 138 (a) An employer may not knowingly employ an unauthorized 139 alien. 140 (b) A person who has a good faith belief that an employer 141 knowingly employs, or has within the last 90 calendar days 142 knowingly employed, an unauthorized alien may file a complaint 143 with the department. 144 (c) A complaint may not be based on race, color, or 145 national origin, except to the extent permitted by state or 146 federal law. 147 (d) A person who knowingly files a false or frivolous 148 complaint under this subsection commits a misdemeanor of the 149 second degree, punishable as provided in s. 775.082 or s. 150 775.083, Florida Statutes. 151 (e) Upon the receipt of a valid complaint of a violation of 152 paragraph (a), the department shall notify the employer of the 153 complaint and direct the employer to notify any employees named 154 in the complaint. 155 (f) The department shall investigate whether a violation of 156 paragraph (a) has occurred and hold an administrative hearing at 157 which the employer has the right to counsel and may present any 158 evidence it desires. The department shall request that the 159 Federal Government verify, pursuant to 8 U.S.C. s. 1373(c), the 160 citizenship or immigration status of any employee named in the 161 complaint, and the department must rely upon such verification. 162 The department may not independently make a final determination 163 as to whether an employee is an unauthorized alien. 164 (g) The department may issue a subpoena for an employer to 165 produce employment records that relate to employment 166 recruitment, hiring, or termination policies, practices, or acts 167 relating to the investigation of a valid complaint of a 168 violation of paragraph (a). 169 (h) Upon finding that an employer has violated paragraph 170 (a), the department shall notify: 171 1. The United States Immigration and Customs Enforcement 172 Agency of the identity of the unauthorized alien and, if known, 173 the physical address at which the unauthorized alien resides. 174 2. The local law enforcement agency of the jurisdiction in 175 which the unauthorized alien resides. 176 (i)1. Upon finding that an employer has violated paragraph 177 (a), the department shall order the employer to: 178 a. Terminate the employment of all unauthorized aliens; and 179 b. File a sworn affidavit with the department within 10 180 calendar days after receipt of the order. The affidavit must 181 state that the employer has corrected such violation by: 182 (I) Terminating the employment of all unauthorized aliens; 183 or 184 (II) Attempting to terminate the employment of all 185 unauthorized aliens but such termination is being challenged in 186 a court of competent jurisdiction. 187 2. If the employer fails to file the affidavit under 188 subparagraph 1., the department shall order the appropriate 189 agencies to suspend all applicable licenses held by the employer 190 until the affidavit is filed. Notwithstanding any other law, the 191 suspended licenses shall be deemed to have been reinstated upon 192 the filing of the affidavit. During the pendency of any court 193 action or challenge to an E-Verify system determination, the 10 194 calendar-day period shall be tolled. 195 3. Licenses subject to suspension under subparagraph 2. 196 include all licenses that are held by the employer that are 197 necessary to operate the employer’s business at the specific 198 location at which the unauthorized alien performed work. If a 199 license is not necessary to operate the employer’s business at 200 such location, but a license is necessary to operate the 201 employer’s business in general, the licenses subject to 202 suspension under subparagraph 2. shall include all licenses held 203 by the employer at the employer’s primary place of business. 204 (j) Upon finding that a second or subsequent violation of 205 paragraph (a) occurred during a 2-year period, the department 206 shall order the appropriate agencies to suspend, for at least 30 207 calendar days, all licenses held by the employer that are 208 necessary to operate the employer’s business at the specific 209 location at which the unauthorized alien performed work. If a 210 license is not necessary to operate the employer’s business at 211 such location, but a license is necessary to operate the 212 employer’s business in general, the department shall order the 213 appropriate agencies to suspend, for at least 30 calendar days, 214 all licenses held by the employer at the employer’s primary 215 place of business. 216 (k)1. An employer registered with and using the E-Verify 217 system may not be held civilly liable in a cause of action for 218 the employer’s: 219 a. Unlawful hiring of an unauthorized alien if the 220 information obtained from the E-Verify system indicated that the 221 person’s work authorization status was not that of an 222 unauthorized alien; or 223 b. Refusal to hire a person if the information obtained 224 from the E-Verify system indicated that the person’s work 225 authorization status was that of an unauthorized alien. 226 2. An employer who in good faith registers with and uses 227 the E-Verify system is considered to have complied with the 228 requirements of 8 U.S.C. s. 1324a(b) and may not be held liable 229 for any damages and shall be immune from any legal cause of 230 action brought by any person or entity, including former 231 employees, for the use of and reliance upon any incorrect 232 information obtained from the E-Verify system, including any 233 incorrect information obtained as a result of an isolated, 234 sporadic, or accidental technical or procedural failure, when 235 determining final action on a person’s work authorization 236 status. 237 (l) The department shall maintain a public database 238 containing copies of all orders issued pursuant to this 239 subsection and shall make such information available on its 240 website. 241 (m) If the department determines that an agency or employer 242 has failed to comply with an order under this subsection, the 243 department may apply to the circuit court for a judicial order 244 directing the agency or employer to comply with such order. 245 (n) For purposes of this subsection, compliance with 246 paragraph (2)(a) creates a rebuttable presumption that an 247 employer did not knowingly employ an unauthorized alien in 248 violation of paragraph (a). 249 (4) INJUNCTION.—At any time after the department has 250 notified an employer that a valid complaint of a violation of 251 paragraph (3)(a) was received, and up to 30 calendar days after 252 the date on which the department issues an order pursuant to 253 paragraph (3)(i), the employer subject to the complaint, or any 254 employee who is alleged to be an unauthorized alien, may 255 challenge and seek to enjoin the enforcement of this section 256 before a court of competent jurisdiction. 257 (5) DECEPTIVE AND UNFAIR TRADE PRACTICE.— 258 (a) An employer commits a deceptive and unfair trade 259 practice in violation of part II of chapter 501, Florida 260 Statutes, if it discharges an employee who is a United States 261 citizen or resident alien, as defined in s. 379.101(31), Florida 262 Statutes, while knowingly employing an unauthorized alien at the 263 same job site or in the same job classification elsewhere in 264 this state. 265 (b) The discharged employee has a private cause of action 266 against the employer for a violation of this subsection. The 267 available remedies to the discharged employee are reinstatement, 268 back pay, court costs, and attorney fees. Criminal or civil 269 sanctions, including fines, may not be imposed against an 270 employer for a violation of this subsection. 271 (c) A cause of action under this subsection does not exist 272 against an employer who, on the date it discharged an employee 273 as described in paragraph (a), was registered with and used the 274 E-Verify system to verify a person’s work authorization status. 275 (6) CONSTRUCTION.—This section shall be enforced without 276 regard to race, color, or national origin and shall be construed 277 in a manner so as to be fully consistent with any applicable 278 federal laws or regulations. 279 Section 2. Section 287.137, Florida Statutes, is created to 280 read: 281 287.137 Verification of work authorization status; public 282 employers.— 283 (1) As used in the section, the term: 284 (a) “Contractor” means a person or entity that has entered 285 into, or is attempting to enter into, a contract with a public 286 employer to provide labor, supplies, or services to such 287 employer in exchange for salary, wages, or other remuneration. 288 (b) “E-Verify system” means an Internet-based system 289 operated by the United States Department of Homeland Security 290 that allows participating employers to electronically verify the 291 employment eligibility of newly hired employees. 292 (c) “Public employer” means a department, agency, or 293 political subdivision of this state that enters into, or 294 attempts to enter into, a contract with a contractor. 295 (d) “Subcontractor” means a person or entity that provides 296 labor, supplies, or services to or for a contractor or another 297 subcontractor in exchange for salary, wages, or other 298 remuneration. 299 (e) “Unauthorized alien” means a person who is not 300 authorized under federal law to be employed in the United 301 States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall 302 be interpreted consistently with that section and any applicable 303 federal rules or regulations. 304 (2)(a) Every public employer, contractor, and subcontractor 305 shall register with and use the E-Verify system to verify the 306 work authorization status of all new employees. 307 (b) A public employer, contractor, or subcontractor may not 308 enter into a contract under this section unless each party to 309 the contract registers with and uses the E-Verify system. 310 (3)(a) If a contractor enters into a contract with a 311 subcontractor, the subcontractor shall certify to the contractor 312 in a manner that does not violate federal law that the 313 subcontractor, at the time of such certification, does not 314 employ, contract, or subcontract with an unauthorized alien. 315 (b) A contractor shall maintain a copy of such 316 certification for the duration of the contract with the 317 subcontractor. 318 (4)(a) A public employer, contractor, or subcontractor who 319 has a good faith belief that a person or entity with which it is 320 contracting has knowingly violated this section shall terminate 321 the contract with the person or entity. 322 (b) A public employer that has a good faith belief that a 323 subcontractor knowingly violated this section, but the 324 contractor otherwise complied with this section, shall promptly 325 notify the contractor and order the contractor to immediately 326 terminate the contract with the subcontractor. 327 (c) A contract terminated pursuant to paragraph (a) or 328 paragraph (b) is not a breach of contract and may not be 329 considered as such. 330 (d) A public employer, contractor, or subcontractor may 331 file an action with a circuit or county court to challenge a 332 termination under paragraph (a) or paragraph (b) no later than 333 20 calendar days after the date on which the contract was 334 terminated. 335 (e) If a public employer terminates a contract with a 336 contractor pursuant to paragraph (a), the contractor may not be 337 awarded a public contract for at least 1 year after the date on 338 which the contract was terminated. 339 (5) This section shall be construed in a manner so as to be 340 fully consistent with any applicable federal laws or 341 regulations. 342 Section 3. This act shall take effect July 1, 2019.