Florida Senate - 2020 CS for CS for SB 664
By the Committees on Commerce and Tourism; and Judiciary; and
Senators Lee, Gruters, Harrell, and Simmons
577-03847A-20 2020664c2
1 A bill to be entitled
2 An act relating to the verification of employment
3 eligibility; amending s. 287.058, F.S.; requiring
4 written agreements for the procurement of specified
5 contractual services to include a statement regarding
6 the requirement that a contractor or subcontractor
7 register with and use an employment verification
8 system; creating s. 287.137, F.S.; defining terms;
9 requiring public employers and certain contractors and
10 subcontractors to register with and use an employment
11 verification system by a specified date; prohibiting
12 public employers, contractors, and subcontractors from
13 entering into a contract unless each party to the
14 contract registers with and uses an employment
15 verification system; creating s. 448.093, F.S.;
16 defining terms; requiring employers who meet specified
17 criteria to register with and use an employment
18 verification system to verify the employment
19 eligibility of new employees; prescribing an
20 implementation schedule for the employment
21 verification requirement; authorizing the imposition
22 of fines for violations of the act; requiring a
23 violating employer to submit certain affidavits to the
24 Department of Economic Opportunity; requiring the
25 department to order the appropriate licensing agency
26 to suspend an employer’s license under certain
27 circumstances; providing civil immunity for an
28 employer registered with and using an employment
29 verification system; providing specified immunity and
30 nonliability for an employer who complies in good
31 faith with the requirements of the act; creating a
32 rebuttable presumption for certain employers that the
33 employer did not knowingly employ an unauthorized
34 alien; requiring the department to define by rule
35 employment verification systems substantially
36 equivalent to the E-Verify system; providing
37 requirements for such rules; providing an effective
38 date.
39
40 Be It Enacted by the Legislature of the State of Florida:
41
42 Section 1. Subsection (1) of section 287.058, Florida
43 Statutes, is amended to read:
44 287.058 Contract document.—
45 (1) Every procurement of contractual services in excess of
46 the threshold amount provided in s. 287.017 for CATEGORY TWO,
47 except for the providing of health and mental health services or
48 drugs in the examination, diagnosis, or treatment of sick or
49 injured state employees or the providing of other benefits as
50 required by chapter 440, shall be evidenced by a written
51 agreement embodying all provisions and conditions of the
52 procurement of such services, which shall, where applicable,
53 include, but not be limited to, a provision:
54 (a) That bills for fees or other compensation for services
55 or expenses be submitted in detail sufficient for a proper
56 preaudit and postaudit thereof.
57 (b) That bills for any travel expenses be submitted in
58 accordance with s. 112.061. A state agency may establish rates
59 lower than the maximum provided in s. 112.061.
60 (c) Allowing unilateral cancellation by the agency for
61 refusal by the contractor to allow public access to all
62 documents, papers, letters, or other material made or received
63 by the contractor in conjunction with the contract, unless the
64 records are exempt from s. 24(a) of Art. I of the State
65 Constitution and s. 119.07(1).
66 (d) Specifying a scope of work that clearly establishes all
67 tasks the contractor is required to perform.
68 (e) Dividing the contract into quantifiable, measurable,
69 and verifiable units of deliverables that must be received and
70 accepted in writing by the contract manager before payment. Each
71 deliverable must be directly related to the scope of work and
72 specify a performance measure. As used in this paragraph, the
73 term “performance measure” means the required minimum acceptable
74 level of service to be performed and criteria for evaluating the
75 successful completion of each deliverable.
76 (f) Specifying the criteria and the final date by which
77 such criteria must be met for completion of the contract.
78 (g) Specifying that the contract may be renewed for a
79 period that may not exceed 3 years or the term of the original
80 contract, whichever is longer, specifying the renewal price for
81 the contractual service as set forth in the bid, proposal, or
82 reply, specifying that costs for the renewal may not be charged,
83 and specifying that renewals are contingent upon satisfactory
84 performance evaluations by the agency and subject to the
85 availability of funds. Exceptional purchase contracts pursuant
86 to s. 287.057(3)(a) and (c) may not be renewed.
87 (h) Specifying the financial consequences that the agency
88 must apply if the contractor fails to perform in accordance with
89 the contract.
90 (i) Addressing the property rights of any intellectual
91 property related to the contract and the specific rights of the
92 state regarding the intellectual property if the contractor
93 fails to provide the services or is no longer providing
94 services.
95 (j) Requiring a contractor or any subcontractor performing
96 a portion of the contract to register with and use an employment
97 verification system to the extent required by s. 287.137 for all
98 new employees hired in this state during the term of the
99 contract.
100
101 In lieu of a written agreement, the agency may authorize the use
102 of a purchase order for classes of contractual services if the
103 provisions of paragraphs (a)-(j) (a)-(i) are included in the
104 purchase order or solicitation. The purchase order must include,
105 but need not be limited to, an adequate description of the
106 services, the contract period, and the method of payment. In
107 lieu of printing the provisions of paragraphs (a)-(c) and (g) in
108 the contract document or purchase order, agencies may
109 incorporate the requirements of paragraphs (a)-(c) and (g) by
110 reference.
111 Section 2. Section 287.137, Florida Statutes, is created to
112 read:
113 287.137 Verification of work authorization status; public
114 employers.—
115 (1) As used in this section, the term:
116 (a) “Contractor” means a person or an entity that has more
117 than 10 employees in this state and has entered into, or is
118 attempting to enter into, a contract with a public employer to
119 provide labor, supplies, or services to such employer.
120 (b) “Employee” has the same meaning as provided in s.
121 448.093.
122 (c) “Employment verification system” has the same meaning
123 as provided in s. 448.093.
124 (d) “Public employer” means a department, an agency, or a
125 political subdivision of this state which enters into, or
126 attempts to enter into, a contract with a contractor for an
127 amount that will, or is expected to, exceed the CATEGORY TWO
128 threshold amount provided in s. 287.017.
129 (e) “Subcontractor” means a person or an entity that has
130 more than 10 employees in this state and provides labor,
131 supplies, or services to or for a contractor or another
132 subcontractor pursuant to a contract that will, or is expected
133 to, exceed the CATEGORY TWO threshold amount provided in s.
134 287.017.
135 (f) “Unauthorized alien” means a person who is not
136 authorized under federal law to be employed in the United
137 States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
138 be interpreted consistently with that section and any applicable
139 federal rules or regulations.
140 (2) On or after July 1, 2021:
141 (a) Every public employer, contractor, and subcontractor
142 shall register with and use an employment verification system to
143 verify the work authorization status of all new employees and
144 identify whether an employee is an unauthorized alien.
145 (b) A public employer or a contractor or subcontractor in
146 this state may not enter into a contract under this section
147 unless each party to the contract registers with and uses an
148 employment verification system.
149 Section 3. Section 448.093, Florida Statutes, is created to
150 read:
151 448.093 Definitions; use of employment verification system
152 required for private employers; business licensing enforcement.—
153 (1) DEFINITIONS.—As used in this section, the term:
154 (a) “Agency” means an agency, a department, a board, or a
155 commission of this state or a county or municipality which
156 issues a license to operate a business in this state.
157 (b) “Department” means the Department of Economic
158 Opportunity.
159 (c) “Employee” means an individual whose work is performed
160 under the direction and supervision of the employer and whose
161 employer withholds tax pursuant to the Federal Insurance
162 Contributions Act (FICA) or federal income tax from the
163 individual’s compensation, or whose employer issues an Internal
164 Revenue Service W-2 form, but not an Internal Revenue Service
165 Form 1099, to an individual for purposes of documenting
166 compensation. The term does not include a licensed independent
167 contractor as defined in federal laws or regulations.
168 (d) “Employer” means a person or an entity in this state
169 which employs an employee. The term does not include:
170 1. A government employer.
171 2. The occupant or owner of a private residence who hires:
172 a. Casual labor, as defined in s. 443.036, to be performed
173 entirely within the private residence; or
174 b. A licensed independent contractor, as defined in federal
175 laws or regulations, to perform a specified portion of labor or
176 services.
177 3. An employee leasing company licensed pursuant to part XI
178 of chapter 468 which enters into a written agreement or
179 understanding with a client company which places the primary
180 obligation for compliance with this section upon the client
181 company. In the absence of a written agreement or understanding,
182 the term includes an employee leasing company.
183 (e) “Employment verification system” means:
184 1. An Internet-based system operated by the United States
185 Department of Homeland Security which allows participating
186 employers to electronically verify the employment eligibility of
187 newly hired employees;
188 2. A system to verify whether an employee is an
189 unauthorized alien that an employer certifies, under penalty of
190 perjury, on a form provided by the department as a substantially
191 equivalent electronic employment verification system to that
192 specified in subparagraph 1.; or
193 3. A system that complies with 8 U.S.C. 1324a and the
194 employer maintains complete copies of all records used to
195 establish an employee’s identity and employment authorization
196 for at least 3 years after the employer receives the records or
197 1 year after the employee ceases to provide services to the
198 employer, whichever is later.
199 (f) “Knowingly employ an unauthorized alien” has the same
200 meaning as in 8 U.S.C. s. 1324a. The term shall be interpreted
201 consistently with 8 U.S.C. s. 1324a and any applicable federal
202 rules or regulations.
203 (g) “License” means a franchise, a permit, a certificate,
204 an approval, a registration, a charter, or any similar form of
205 authorization required by state law and issued by an agency for
206 the purpose of operating a business in this state. The term
207 includes, but is not limited to:
208 1. An article of incorporation.
209 2. A certificate of partnership, a partnership
210 registration, or an article of organization.
211 3. A grant of authority issued pursuant to state or federal
212 law.
213 4. A transaction privilege tax license.
214 (h) “Unauthorized alien” means a person who is not
215 authorized under federal law to be employed in the United
216 States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
217 be interpreted consistently with that section and any applicable
218 federal rules or regulations.
219 (2) VERIFICATION OF EMPLOYMENT ELIGIBILITY; FINE FOR
220 VIOLATION; SUSPENSION OF BUSINESS LICENSE.—
221 (a) An employer shall, after making an offer of employment
222 which has been accepted by an individual, use an employment
223 verification system to verify such individual’s employment
224 eligibility. Verification must occur within the period
225 stipulated by applicable federal rules or regulations. However,
226 an employer is not required to verify the employment eligibility
227 of a continuing employee hired before the date of the employer’s
228 registration with an employment verification system.
229 (b) The requirement to use an employment verification
230 system shall be phased in as follows:
231 1. Employers having at least 500 employees in this state
232 must use an employment verification system beginning January 1,
233 2021.
234 2. Employers having at least 100 employees in this state
235 must use an employment verification system beginning July 1,
236 2021.
237 3. Employers having at least 20 employees in this state
238 must use an employment verification system beginning January 1,
239 2022.
240 (c) If an employer does not register with an employment
241 verification system, the department may impose a fine of up to
242 $500 on the employer, who must then register with an employment
243 verification system and provide an affidavit stating such fact
244 to the department within 30 days. If the employer does not
245 register with and provide the required affidavit within 30 days
246 after the imposition of the fine becomes final, the department
247 must order the appropriate agency to suspend all applicable
248 licenses held by the employer until the employer registers with
249 an employment verification system and provides the department
250 with the required affidavit.
251 (3) EMPLOYMENT OF UNAUTHORIZED ALIENS; IMMUNITY.—
252 (a)1. An employer registered with and using an employment
253 verification system may not be held civilly liable in a cause of
254 action for the employer’s:
255 a. Hiring of an unauthorized alien if the information
256 obtained from the employment verification system indicated that
257 the person’s work authorization status was not that of an
258 unauthorized alien; or
259 b. Refusal to hire a person if the information obtained
260 from the employment verification system indicated that the
261 person’s work authorization status was that of an unauthorized
262 alien.
263 2. An employer who in good faith registers with and uses an
264 employment verification system is considered to have complied
265 with the requirements of 8 U.S.C. s. 1324a(b) and may not be
266 held liable for any damages and is immune from any legal cause
267 of action brought by any person or entity, including former
268 employees, for the use of and reliance upon any incorrect
269 information obtained from the employment verification system,
270 including any incorrect information obtained as a result of an
271 isolated, sporadic, or accidental technical or procedural
272 failure, when determining final action on a person’s work
273 authorization status.
274 (b) For purposes of this subsection, compliance with
275 subsection (2) creates a rebuttable presumption that an employer
276 did not knowingly employ an unauthorized alien in violation of
277 s. 448.09.
278 (4) RULEMAKING.—The department shall adopt rules to define
279 an employment verification system, if any, that is substantially
280 equivalent to or more effective than the E-Verify system with
281 respect to identifying unauthorized aliens and those persons
282 eligible to work in the United States. The rules must identify
283 the types of databases, methodologies, and evidence of identity
284 and employment eligibility that qualify an employment
285 verification system as substantially equivalent to or more
286 effective than the E-Verify system.
287 Section 4. This act shall take effect July 1, 2020.