Florida Senate - 2020 CS for SB 664
By the Committee on Judiciary; and Senators Lee, Gruters, and
Harrell
590-03510A-20 2020664c1
1 A bill to be entitled
2 An act relating to the verification of employment
3 eligibility; creating s. 287.137, F.S.; defining
4 terms; requiring public employers and certain
5 contractors and subcontractors to register with and
6 use an employment verification system by a specified
7 date; prohibiting public employers, contractors, and
8 subcontractors from entering into a contract unless
9 each party to the contract registers with and uses an
10 employment verification system; creating s. 448.093,
11 F.S.; defining terms; requiring employers who meet
12 specified criteria to register with and use an
13 employment verification system to verify the
14 employment eligibility of new employees; prescribing
15 an implementation schedule for the employment
16 verification requirement; authorizing the imposition
17 of fines for violations of the act; requiring a
18 violating employer to submit certain affidavits to the
19 Department of Economic Opportunity; requiring the
20 department to order the appropriate licensing agency
21 to suspend an employer’s license under certain
22 circumstances; providing civil immunity for an
23 employer registered with and using an employment
24 verification system; providing specified immunity and
25 nonliability for an employer who complies in good
26 faith with the requirements of the act; creating a
27 rebuttable presumption for certain employers that the
28 employer did not knowingly employ an unauthorized
29 alien; requiring the department to define by rule
30 employment verification systems substantially
31 equivalent to the E-Verify system; providing
32 requirements for such rules; providing an effective
33 date.
34
35 Be It Enacted by the Legislature of the State of Florida:
36
37 Section 1. Section 287.137, Florida Statutes, is created to
38 read:
39 287.137 Verification of work authorization status; public
40 employers.—
41 (1) As used in this section, the term:
42 (a) “Contractor” means a person or an entity that has more
43 than 10 employees and has entered into, or is attempting to
44 enter into, a contract with a public employer to provide labor,
45 supplies, or services to such employer.
46 (b) “Employee” has the same meaning as provided in s.
47 448.093.
48 (c) “Employment verification system” has the same meaning
49 as provided in s. 448.093.
50 (d) “Public employer” means a department, an agency, or a
51 political subdivision of this state which enters into, or
52 attempts to enter into, a contract with a contractor for an
53 amount that will, or is expected to, exceed the CATEGORY FOUR
54 threshold amount provided in s. 287.017.
55 (e) “Subcontractor” means a person or an entity that has
56 more than 10 employees and provides labor, supplies, or services
57 to or for a contractor or another subcontractor pursuant to a
58 contract that will, or is expected to, exceed the CATEGORY THREE
59 threshold amount provided in s. 287.017.
60 (f) “Unauthorized alien” means a person who is not
61 authorized under federal law to be employed in the United
62 States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
63 be interpreted consistently with that section and any applicable
64 federal rules or regulations.
65 (2) On or after July 1, 2022:
66 (a) Every public employer, contractor, and subcontractor
67 shall register with and use an employment verification system to
68 verify the work authorization status of all new employees and
69 identify whether an employee is an unauthorized alien.
70 (b) A public employer or a contractor or subcontractor in
71 this state may not enter into a contract under this section
72 unless each party to the contract registers with and uses an
73 employment verification system.
74 Section 2. Section 448.093, Florida Statutes, is created to
75 read:
76 448.093 Definitions; use of employment verification system
77 required for private employers; business licensing enforcement.—
78 (1) DEFINITIONS.—As used in this section, the term:
79 (a) “Agency” means an agency, a department, a board, or a
80 commission of this state or a county, municipality, or town
81 issuing a license to operate a business in this state.
82 (b) “Department” means the Department of Economic
83 Opportunity.
84 (c) “Employee” means an individual whose work is performed
85 under the direction and supervision of the employer and whose
86 employer withholds tax pursuant to the Federal Insurance
87 Contributions Act (FICA) or federal income tax from the
88 individual’s compensation, or whose employer issues an Internal
89 Revenue Service W-2 form, but not an Internal Revenue Service
90 Form 1099, to an individual for purposes of documenting
91 compensation. The term does not include a licensed independent
92 contractor as defined in federal laws or regulations.
93 (d) “Employer” means a person or an entity in this state
94 which employs an employee. The term does not include:
95 1. A government employer.
96 2. The occupant or owner of a private residence who hires:
97 a. Casual labor, as defined in s. 443.036, to be performed
98 entirely within the private residence; or
99 b. A licensed independent contractor, as defined in federal
100 laws or regulations, to perform a specified portion of labor or
101 services.
102 3. An agricultural employer, which includes any person who
103 owns or operates a farm, ranch, processing establishment,
104 cannery, gin, packing shed, or nursery, or who produces or
105 conditions seed, and who either recruits, solicits, hires,
106 employs, furnishes, or transports any migrant or seasonal
107 agricultural worker. This subparagraph is repealed 90 days after
108 the effective date of any federal law, rule, regulation, or
109 program that authorizes this state or a federal agency to grant
110 temporary legal status to an unauthorized alien who can
111 demonstrate that he or she has performed agricultural work in
112 the United States for not fewer than 575 hours or 100 work days
113 during a 2-year period and has maintained a continuous presence
114 in the United States, except for brief absences, during that
115 period.
116 4. An employee leasing company licensed pursuant to part XI
117 of chapter 468 which enters into a written agreement or
118 understanding with a client company which places the primary
119 obligation for compliance with this section upon the client
120 company. In the absence of a written agreement or understanding,
121 the term includes an employee leasing company.
122 (e) “Employment verification system” means:
123 1. An Internet-based system operated by the United States
124 Department of Homeland Security which allows participating
125 employers to electronically verify the employment eligibility of
126 newly hired employees; or
127 2. A substantially equivalent electronic employment
128 verification system that is permissible under department rule.
129 (f) “Knowingly employ an unauthorized alien” has the same
130 meaning as in 8 U.S.C. s. 1324a. The term shall be interpreted
131 consistently with 8 U.S.C. s. 1324a and any applicable federal
132 rules or regulations.
133 (g) “License” means a franchise, a permit, a certificate,
134 an approval, a registration, a charter, or any similar form of
135 authorization required by state law and issued by an agency for
136 the purpose of operating a business in this state. The term
137 includes, but is not limited to:
138 1. An article of incorporation.
139 2. A certificate of partnership, a partnership
140 registration, or an article of organization.
141 3. A grant of authority issued pursuant to state or federal
142 law.
143 4. A transaction privilege tax license.
144 (h) “Unauthorized alien” means a person who is not
145 authorized under federal law to be employed in the United
146 States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
147 be interpreted consistently with that section and any applicable
148 federal rules or regulations.
149 (2) VERIFICATION OF EMPLOYMENT ELIGIBILITY; FINE FOR
150 VIOLATION; SUSPENSION OF BUSINESS LICENSE.—
151 (a) An employer shall, after making an offer of employment
152 which has been accepted by a person, use an employment
153 verification system to verify such person’s employment
154 eligibility. Verification must occur within the period
155 stipulated by applicable federal rules or regulations. However,
156 an employer is not required to verify the employment eligibility
157 of a continuing employee hired before the date of the employer’s
158 registration with an employment verification system.
159 (b) The requirement to use an employment verification
160 system shall be phased in as follows:
161 1. Employers having at least 500 employees must use an
162 employment verification system beginning January 1, 2021.
163 2. Employers having at least 250 employees must use an
164 employment verification system beginning July 1, 2021.
165 3. Employers having at least 150 employees must use an
166 employment verification system beginning January 1, 2022.
167 4. Employers having more than 10 employees must use an
168 employment verification system 90 days after the effective date
169 of any federal law, rule, regulation, or program that authorizes
170 this state to issue a work permit, whether temporary or
171 permanent, to a qualifying undocumented alien.
172 (c) If an employer does not register with an employment
173 verification system, the department may impose a fine of up to
174 $500 on the employer, who must then register with an employment
175 verification system and provide an affidavit of stating such
176 fact to the department within 30 days. If the employer does not
177 register with and provide the required affidavit within 30 days
178 after the imposition of the fine becomes final, the department
179 must order the appropriate agency to suspend all applicable
180 licenses held by the employer until the employer registers with
181 an employment verification system and provides the department
182 with the required affidavit.
183 (3) EMPLOYMENT OF UNAUTHORIZED ALIENS; IMMUNITY.—
184 (a)1. An employer registered with and using an employment
185 verification system may not be held civilly liable in a cause of
186 action for the employer’s:
187 a. Hiring of an unauthorized alien if the information
188 obtained from the employment verification system indicated that
189 the person’s work authorization status was not that of an
190 unauthorized alien; or
191 b. Refusal to hire a person if the information obtained
192 from the employment verification system indicated that the
193 person’s work authorization status was that of an unauthorized
194 alien.
195 2. An employer who in good faith registers with and uses an
196 employment verification system is considered to have complied
197 with the requirements of 8 U.S.C. s. 1324a(b) and may not be
198 held liable for any damages and is immune from any legal cause
199 of action brought by any person or entity, including former
200 employees, for the use of and reliance upon any incorrect
201 information obtained from the employment verification system,
202 including any incorrect information obtained as a result of an
203 isolated, sporadic, or accidental technical or procedural
204 failure, when determining final action on a person’s work
205 authorization status.
206 (b) For purposes of this subsection, compliance with
207 subsection (2) creates a rebuttable presumption that an employer
208 did not knowingly employ an unauthorized alien in violation of
209 s. 448.09.
210 (4) RULEMAKING.—The department shall adopt rules to define
211 an employment verification system, if any, that is substantially
212 equivalent to or more effective than the E-Verify system with
213 respect to identifying unauthorized aliens and those persons
214 eligible to work in the United States. The rules must identify
215 the types of databases, methodologies, and evidence of identity
216 and employment eligibility that qualify an employment
217 verification system as substantially equivalent to or more
218 effective than the E-Verify system.
219 Section 3. This act shall take effect July 1, 2020.