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By: Melissa Santalone
A Florida State Senator has filed a bill that would require, beginning January 1, 2021, all Florida businesses to use the “E-Verify” system to check whether each newly hired employee is authorized to work in the U.S. The “E-Verify” system is a web-based system operated by the Department of Homeland Security (DHS) that compares information supplied by the user, presumably first obtained from the new employee, with data held by DHS and the Social Security Administration. The bill does not limit its application to businesses of a certain size and, therefore, even the smallest of Florida businesses would be required to comply. Any businesses failing to register with “E-Verify” after the effective date of the bill, if signed into law, would be subject to suspension of all or any state licenses they hold. If an employer is found to have committed a second violation of knowingly employing an “unauthorized alien” within a 2-year period, the bill would subject the employer to a 30-day suspension of its business licenses. Governor Ron DeSantis has previously come out in favor of mandatory use of “E-Verify” and would likely sign the bill into law if it were to pass both houses of the Legislature.
By introducing this bill, the Florida legislature joins the legislatures of other states, including Pennsylvania, and the United States Congress in considering similar mandatory use of “E-Verify” in 2019. Earlier this year, legislators in North Carolina proposed a bill that would increase the number of businesses subject to its mandatory use of “E-Verify” by including businesses with 5 or more employees, down from 25 or more. Currently 9 states require all or most employers to use “E-Verify” and numerous others require some employers to use it.
Interestingly, the Florida bill would also create a private cause of action against an employer by an employee who is a U.S. citizen or resident alien that is 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. In such an action, the employee could be entitled to reinstatement or the recovery of back pay, court costs, and attorney’s fees.
We will be watching to see if this bill becomes law. 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]. If you need assistance in other states where Freeman Mathis & Gary can assist you, please contact a member of our Labor & Employment practice group.