Bill Text: FL S0664 | 2020 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Verification of Employment Eligibility

Spectrum: Bipartisan Bill

Status: (Passed) 2020-07-01 - Chapter No. 2020-149 [S0664 Detail]

Download: Florida-2020-S0664-Comm_Sub.html

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       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.