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Florida Governor Ron DeSantis has signed into law a bill on verification of employees’ legal authorization to work in the U.S. that is a far cry from the original bill proposed at the beginning of the legislative discussion. As we discussed here, the initial bill would have required all Florida employers to register with and use the E-Verify system, a web-based system operated by the Department of Homeland Security (DHS) that compares information supplied by the user with data held by DHS and the Social Security Administration, to verify the employment eligibility of each new employee. It would also have imposed suspension of business licensure upon the first violation and allowed a private right of action by employees that are U.S. citizens or resident aliens that were discharged by the employer while the employer knowingly employs an “unauthorized alien” at the same job site or in the same job classification elsewhere in Florida. However, this initial version was stripped of these and other provisions through the legislative process, making compliance for Florida private employers much easier.
In the end, the bill signed by Gov. DeSantis will require, beginning January 1, 2021, all Florida public employers, contractors and subcontractors to use the E-Verify system to verify the employment eligibility of all their employees. These public employers, contractors, and subcontractors are prohibited from entering into contracts with another entity unless each party uses the E-Verify system. Subcontractors are required to provide contractors with whom they enter into contracts with an affidavit providing that the subcontractors do not employ, contract with, or subcontract with “unauthorized aliens.”
In contrast, beginning January 1, 2021, private employers are only required to verify new employees’ and, upon renewal or extension of their contracts, contract employees’ eligibility either by requiring the employees to fill out standard I-9 forms and providing the documentation required by the form, which is already required by federal law, or by using E-Verify. The law provides that private employers may not be held civilly or criminally liable for hiring or continuing to employ an “unauthorized alien” for whom the information collected for verification of employment eligibility indicates the person’s work authorization status is not that of an “unauthorized alien.” Compliance with the statute gives rise to a rebuttable presumption that private employers did not knowingly employ an “unauthorized alien.” In terms of enforcement, private employers must retain verification documentation for three years and must produce such documentation to the Florida Department of Law Enforcement, the Florida Attorney General, a state attorney, or a statewide prosecutor upon request. If a private employer is found to have violated this statute, it must produce an affidavit attesting that it will comply with the statute going forward, has terminated all “unauthorized aliens” in its employ, and will not knowingly employ “unauthorized aliens.” If the private employer fails to provide such an affidavit within 30 days, it will be subject to suspension of its business licensure until it provides the affidavit. If a private employer is found to have violated the law three times within three years, its business licenses may be permanently revoked.
If you have questions about Florida law surrounding the use of E-Verify or other labor and employment-related questions, please contact Melissa A. Santalone at [email protected].