ENROLLED 2020 Legislature CS for CS for CS for SB 664, 2nd Engrossed 2020664er 1 2 An act relating to the verification of employment 3 eligibility; amending s. 288.061, F.S.; prohibiting 4 the approval of certain economic development incentive 5 applications after a specified date; requiring an 6 awardee to repay certain moneys within a specified 7 timeframe under certain circumstances; creating s. 8 448.095, F.S.; providing definitions; requiring public 9 employers, contractors, and subcontractors to register 10 with and use the E-Verify system; prohibiting such 11 entities from entering into a contract unless each 12 party to the contract registers with and uses the E 13 Verify system; requiring a subcontractor to provide a 14 contractor with a certain affidavit; requiring a 15 contractor to maintain a copy of such affidavit; 16 authorizing the termination of a contract under 17 certain conditions; providing that such termination is 18 not a breach of contract; authorizing a challenge to 19 such termination; providing certain liability for 20 contractors if a contract is terminated; requiring 21 private employers to verify the employment eligibility 22 of newly hired employees beginning on a specified 23 date; providing an exception; providing acceptable 24 methods for verifying employment eligibility; 25 requiring a private employer to maintain certain 26 documentation for a specified time period; providing 27 specified immunity and nonliability for private 28 employers; creating a rebuttable presumption for 29 private employers; requiring private employers to 30 provide copies of certain documentation, upon request, 31 to specified persons and entities for certain 32 purposes; prohibiting specified persons and entities 33 from making a determination as to whether a person is 34 an unauthorized alien; requiring a specified affidavit 35 from certain private employers; providing for the 36 suspension or permanent revocation of certain licenses 37 under certain circumstances; providing construction; 38 providing an effective date. 39 40 Be It Enacted by the Legislature of the State of Florida: 41 42 Section 1. Subsection (6) of section 288.061, Florida 43 Statutes, is renumbered as subsection (7), and a new subsection 44 (6) is added to that section to read: 45 288.061 Economic development incentive application 46 process.— 47 (6) Beginning July 1, 2020, the executive director may not 48 approve an economic development incentive application unless the 49 application includes proof to the department that the applicant 50 business is registered with and uses the E-Verify system, as 51 defined in s. 448.095, to verify the work authorization status 52 of all newly hired employees. If the department determines that 53 an awardee is not complying with this subsection, the department 54 must notify the awardee by certified mail of the department’s 55 determination of noncompliance and the awardee’s right to appeal 56 the determination. Upon a final determination of noncompliance, 57 the awardee must repay all moneys received as an economic 58 development incentive to the department within 30 days after the 59 final determination. 60 Section 2. Section 448.095, Florida Statutes, is created to 61 read: 62 448.095 Employment eligibility.— 63 (1) DEFINITIONS.—As used in this section, the term: 64 (a) “Agency” means any agency, department, board, or 65 commission of this state or a county or municipality in this 66 state that issues a license to operate a business in this state. 67 (b) “Contractor” means a person or entity that has entered 68 or is attempting to enter into a contract with a public employer 69 to provide labor, supplies, or services to such employer in 70 exchange for salary, wages, or other remuneration. 71 (c) “Department” means the Department of Economic 72 Opportunity. 73 (d) “Employee” means a person filling an authorized and 74 established position who performs labor or services for a public 75 or private employer in exchange for salary, wages, or other 76 remuneration. 77 (e) “E-Verify system” means an Internet-based system 78 operated by the United States Department of Homeland Security 79 that allows participating employers to electronically verify the 80 employment eligibility of newly hired employees. 81 (f) “Legal alien” means a person who is or was lawfully 82 present or permanently residing legally in the United States and 83 allowed to work at the time of employment and remains so 84 throughout the duration of that employment. 85 (g) “License” means a franchise, a permit, a certificate, 86 an approval, a registration, a charter, or any similar form of 87 authorization required by state law and issued by an agency for 88 the purpose of operating a business in this state. The term 89 includes, but is not limited to: 90 1. An article of incorporation. 91 2. A certificate of partnership, a partnership 92 registration, or an article of organization. 93 3. A grant of authority issued pursuant to state or federal 94 law. 95 4. A transaction privilege tax license. 96 (h) “Private employer” means a person or entity that 97 transacts business in this state, has a license issued by an 98 agency, and employs persons to perform labor or services in this 99 state in exchange for salary, wages, or other remuneration. The 100 term does not include: 101 1. A public employer; 102 2. The occupant or owner of a private residence who hires: 103 a. Casual labor, as defined in s. 443.036, to be performed 104 entirely within the private residence; or 105 b. A licensed independent contractor, as defined in federal 106 laws or regulations, to perform a specified portion of labor or 107 services; or 108 3. An employee leasing company licensed under part XI of 109 chapter 468 that enters into a written agreement or 110 understanding with a client company which places the primary 111 obligation for compliance with this section upon the client 112 company. In the absence of a written agreement or understanding, 113 the employee leasing company is responsible for compliance with 114 this section. Such employee leasing company shall, at all times, 115 remain an employer as otherwise defined in federal laws or 116 regulations. 117 (i) “Public employer” means an entity within state, 118 regional, county, local, or municipal government, whether 119 executive, judicial, or legislative, or any public school, 120 community college, or state university that employs persons who 121 perform labor or services for that employer in exchange for 122 salary, wages, or other remuneration or that enters or attempts 123 to enter into a contract with a contractor. 124 (j) “Subcontractor” means a person or entity that provides 125 labor, supplies, or services to or for a contractor or another 126 subcontractor in exchange for salary, wages, or other 127 remuneration. 128 (k) “Unauthorized alien” means a person who is not 129 authorized under federal law to be employed in the United 130 States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall 131 be interpreted consistently with that section and any applicable 132 federal rules or regulations. 133 (2) PUBLIC EMPLOYERS, CONTRACTORS, AND SUBCONTRACTORS.— 134 (a) Beginning January 1, 2021, every public employer, 135 contractor, and subcontractor shall register with and use the E 136 Verify system to verify the work authorization status of all 137 newly hired employees. A public employer, contractor, or 138 subcontractor may not enter into a contract unless each party to 139 the contract registers with and uses the E-Verify system. 140 (b)1. If a contractor enters into a contract with a 141 subcontractor, the subcontractor must provide the contractor 142 with an affidavit stating that the subcontractor does not 143 employ, contract with, or subcontract with an unauthorized 144 alien. 145 2. The contractor shall maintain a copy of such affidavit 146 for the duration of the contract. 147 (c)1. A public employer, contractor, or subcontractor who 148 has a good faith belief that a person or entity with which it is 149 contracting has knowingly violated s. 448.09(1) shall terminate 150 the contract with the person or entity. 151 2. A public employer that has a good faith belief that a 152 subcontractor knowingly violated this subsection, but the 153 contractor otherwise complied with this subsection, shall 154 promptly notify the contractor and order the contractor to 155 immediately terminate the contract with the subcontractor. 156 3. A contract terminated under subparagraph 1. or 157 subparagraph 2. is not a breach of contract and may not be 158 considered as such. 159 (d) A public employer, contractor, or subcontractor may 160 file an action with a circuit or county court to challenge a 161 termination under paragraph (c) no later than 20 calendar days 162 after the date on which the contract was terminated. 163 (e) If a public employer terminates a contract with a 164 contractor under paragraph (c), the contractor may not be 165 awarded a public contract for at least 1 year after the date on 166 which the contract was terminated. 167 (f) A contractor is liable for any additional costs 168 incurred by a public employer as a result of the termination of 169 a contract. 170 (3) PRIVATE EMPLOYERS.— 171 (a) Beginning January 1, 2021, a private employer shall, 172 after making an offer of employment which has been accepted by a 173 person, verify such person’s employment eligibility. A private 174 employer is not required to verify the employment eligibility of 175 a continuing employee hired before January 1, 2021. However, if 176 a person is a contract employee retained by a private employer, 177 the private employer must verify the employee’s employment 178 eligibility upon the renewal or extension of his or her 179 contract. 180 (b) A private employer shall verify a person’s employment 181 eligibility by: 182 1. Using the E-Verify system; or 183 2. Requiring the person to provide the same documentation 184 that is required by the United States Citizenship and 185 Immigration Services on its Employment Eligibility Verification 186 form (Form I-9). 187 188 The private employer must retain a copy of the documentation 189 provided under this subparagraph for at least 3 years after the 190 person’s initial date of employment. 191 (c) A private employer that complies with this subsection 192 may not be held civilly or criminally liable under state law for 193 hiring, continuing to employ, or refusing to hire an 194 unauthorized alien if the information obtained under paragraph 195 (b) indicates that the person’s work authorization status was 196 not that of an unauthorized alien. 197 (d) For purposes of this subsection, compliance with 198 paragraph (b) creates a rebuttable presumption that a private 199 employer did not knowingly employ an unauthorized alien in 200 violation of s. 448.09(1). 201 (e) For the purpose of enforcement of this section, the 202 following persons or entities may request, and a private 203 employer must provide, copies of any documentation relied upon 204 by the private employer for the verification of a person’s 205 employment eligibility, including, but not limited to, any 206 documentation required under paragraph (b): 207 1. The Department of Law Enforcement. 208 2. The Attorney General. 209 3. The state attorney. 210 4. The statewide prosecutor. 211 212 A person or entity that makes a request under this paragraph 213 must rely upon the federal government to verify a person’s 214 employment eligibility and may not independently make a final 215 determination as to whether a person is an unauthorized alien. 216 (f) If a private employer does not comply with paragraph 217 (b), the department shall require the private employer to 218 provide an affidavit to the department stating that the private 219 employer will comply with paragraph (b), the private employer 220 has terminated the employment of all unauthorized aliens in this 221 state, and the employer will not intentionally or knowingly 222 employ an unauthorized alien in this state. If the private 223 employer does not provide the required affidavit within 30 days 224 after the department’s request, the appropriate licensing agency 225 shall suspend all applicable licenses held by the private 226 employer until the private employer provides the department with 227 the required affidavit. For purposes of this paragraph, the 228 licenses that are subject to suspension under this paragraph are 229 all licenses that are held by the private employer specific to 230 the business location where the unauthorized alien performed 231 work. If the private employer does not hold a license specific 232 to the business location where the unauthorized alien performed 233 work, but a license is necessary to operate the private 234 employer’s business in general, the licenses that are subject to 235 suspension under this paragraph are all licenses that are held 236 by the private employer at the private employer’s primary place 237 of business. 238 (g) For any private employer found to have violated 239 paragraph (f) three times within any 36 month period, the 240 appropriate licensing agency shall permanently revoke all 241 licenses that are held by the private employer specific to the 242 business location where the unauthorized alien performed work. 243 If the private employer does not hold a license specific to the 244 business location where the unauthorized alien performed work, 245 but a license is necessary to operate the private employer’s 246 business in general, the appropriate licensing agency shall 247 permanently revoke all licenses that are held by the private 248 employer at the private employer’s primary place of business. 249 (4) CONSTRUCTION.—This section shall be enforced without 250 regard to race, color, or national origin and shall be construed 251 in a manner so as to be fully consistent with any applicable 252 federal laws or regulations. 253 Section 3. This act shall take effect July 1, 2020.