June 20, 2023
By: Chris Dawson
Beginning July 1, 2023, a private employer with 25 or more employees will be required to use the E-Verify system to verify the employment eligibility of new employees under Senate Bill 1718, which was signed into law by Governor Ron DeSantis.
What should Florida private employers know about new E-Verify requirement?
The bill revises the definition of “employee” to “an individual filling a permanent position who performs labor or services under the control or direction of an employer that has the power or right to control and directs the employee in the material details of how the work is to be performed in exchange for a salary, wages, or other remuneration.” Individuals hired for casual labor, as defined in s. 443.036, F.S., which is to be performed within a private residence, and those who are independent contractors, as defined by federal law or regulations, are not within the definition.
An employer required to use the E-Verify system must certify that it complies with this section on its first return each calendar year to the tax service provider when contributing to or reimbursing the state’s unemployment compensation or reemployment assistance system. An otherwise exempt employer that voluntarily uses E-Verify may also make such certifications.
NOTE: Employers with fewer than 25 employees are exempt. The requirement applies to NEW hires on or after July 1, 2023. It is not retroactive.
What should Florida private employers do if the E-Verify system is unavailable?
If the E-Verify system is unavailable for the three business days after the first day a new employee begins working and the employer cannot access the system to verify the employee’s employment eligibility, the employer must use the I-9 Form to verify employment eligibility. The employer must document the unavailability of the system by retaining the following:
- A screenshot each day that shows the employer’s inability to access the system;
- A public announcement that the E-Verify system is not available; or
- Any other communication or notice regarding the unavailability of the system.
The employer must retain a copy of the documentation provided and any official verification generated, if applicable, for at least three years.
The unavailability of the system does not affect an employer’s ability to use the rebuttable defense (safe harbor provision) provided by the bill for employers using the E-Verify system, as discussed below.
How does SB 1718 impact public employers, contractors, and subcontracts?
The bill retains the current law requirements for public employers and all contractors and subcontractors thereof to use the E-Verify system.
NOTE: E-Verify use is required for public employers and contractors/subcontractors thereof, regardless of size.
How does SB 1718 impact employee leasing arrangements?
SB 1718 allows for an employee leasing company to enter into agreements with client companies placing the responsibility for utilizing E-Verify on the client company. In the absence of such an agreement, the responsibility for compliance with E-Verify requirements should fall on the employee leasing company directly. The applicable section of the bill states:
"An employee leasing company licensed under part XI of chapter 468 which enters into a written agreement or understanding with a client company which places the primary obligation for compliance with this section upon the client company is not required to verify the employment eligibility of any new employees of the client company. In the absence of a written agreement or understanding, the employee leasing company is responsible for compliance with this section.” s. 488.095(2)(f), F.S. (as amended by SB 1718)
Nonetheless, it is recommended that the client company take steps to ensure the leasing company complies with E-Verify for the client company’s leased employees.
NOTE: Employers and employee leasing companies should expressly state which party is responsible for meeting Florida’s E-Verify requirements in their contracts.
What are the penalties for failing to register and use E-Verify?
Beginning July 1, 2024, if the Florida Department of Economic Opportunity (DEO) determines that an employer failed to use the E-Verify system to verify the employment eligibility of employees, the DEO must notify the employer of the noncompliance and provide the employer 30 days to cure the noncompliance. If an employer fails to use the E-Verify system as required three times within any 24-month period, the DEO must impose a fine of $1,000 per day until the employer provides sufficient proof that the noncompliance is cured. This noncompliance constitutes grounds for suspension of all licenses by a licensing agency subject to ch. 120, F.S., until the noncompliance is cured.
NOTE: SB 1718 specifies that the requirements to use the E-Verify system do not apply in any federal fiscal year in which the federal government does not fund the system. This section requiring the use of the E-Verify system expires 60 days after the E-Verify system is no longer a pilot program, and the federal government requires the use of the system by all employers.
What are the penalties for knowingly employing an unauthorized alien?
Under SB 1718, if the DEO finds, or if the Florida Department of Law Enforcement (FDLE); the Florida Attorney General; a state attorney in the circuit in which the new employee works; or the statewide prosecutor notifies the DEO that an employer has knowingly employed an unauthorized alien without verifying employment eligibility, the DEO must enter an order under ch. 120, F.S., making such a determination and requiring the repayment of any economic development incentives pursuant to current law (s. 288.061(6), F.S.)
For the first violation, the DEO must place the employer on a 1-year probation and require quarterly reporting to demonstrate compliance. Any subsequent violations within 24 months of a previous violation constitute grounds for suspending or revoking all licenses issued by a licensing agency subject to ch. 120, F.S.
The DEO is required to take the following actions based on subsequent violations involving:
- 1 to 10 unauthorized aliens, suspension of all applicable licenses held by a private employer for up to 30 days by the respective agencies that issued them.
- 11 to 50 unauthorized aliens, suspension of all applicable licenses held by a private employer for up to 60 days by the respective agencies that issued them.
- More than 50 unauthorized aliens, revocation of all applicable licenses held by a private employer by the respective agencies that issued them.
The current law (per s. 448.09, F.S.), creating penalties for knowingly hiring unauthorized aliens, including a second-degree misdemeanor for subsequent violation, is replaced by the abovementioned provisions. Effective July 1, 2024.
NOTE: In any circumstance, an employer may not continue to employ an unauthorized alien after obtaining knowledge that a person is or has become an unauthorized alien.
Does SB 1718 create random audits to ensure enforcement?
Section 15 of the bill creates s. 943.0311(2), F.S., to require the Chief of Domestic Security of the FDLE to ensure compliance with s. 448.095, F.S., by regularly coordinating random audits and notifying the Department of Economic Opportunity (DEO) of any violations found.
What are the penalties for unauthorized aliens using false identification?
The bill creates a third-degree felony for an unauthorized alien who knowingly uses a false identification document or fraudulently uses another person's identification for the purpose of obtaining employment. Effective July 1, 2024.
Is there a safe harbor provision in SB 1718 to protect Florida employers?
An employer that uses the E-Verify system or, if that system is unavailable, the Employment Eligibility Verification Form (Form I-9) as provided in paragraph (2)(c), with respect to the employment of an unauthorized alien, has established a rebuttable presumption that the employer has not violated s. 448.09 with respect to such employment. Effective July 1, 2023.
Are there other changes to Florida Statute under SB 1718 that Florida employers should be aware of?
HUMAN SMUGGLING AND HUMAN TRAFFICKING
Effective July 1, 2023, section 10 of SB 1718 amends the human smuggling crime in s. 787.07, F.S., to provide that a person commits a third-degree felony when he or she knowingly and willfully transports into this state an individual whom the person knows, or reasonably should know, has entered the U.S. in violation of law and has not been inspected by the federal government since his or her unlawful entry.
SB 1718 provides that a person commits a separate offense for each individual he or she transports into this state in violation of this section. SB 1718 also enhances to a second-degree felony the crime of human smuggling when smuggling a minor, more than five people, or when the defendant has a prior conviction for human smuggling.
Section 11 of the bill amends s. 895.02, F.S., to add the crime of human smuggling to the list of crimes that allow for prosecution under the RICO Act.
FEDERAL IMMIGRATION ENFORCEMENT
Section 12 of the bill amends s. 908.104, F.S., to add to the actions a law enforcement agency may take regarding information relating to a person’s immigration status. Specifically, SB 1718 allows a law enforcement agency to send relevant information obtained pursuant to enforcement of s. 448.095, F.S., to a federal immigration agency.
DOMESTIC SECURITY
Sections 13-17 of the bill amend the FDLE’s domestic security statutes to provide the necessary authority for the department to coordinate with and assist the federal government in enforcing federal immigration laws and in response to immigration enforcement incidents within or affecting Florida. The bill also directs the department to coordinate and direct the law enforcement, initial emergency, and other initial responses to other matters concerning the domestic security of Florida as it relates to immigration enforcement incidents.
What are the impacts of ID cards under SB 1718?
Effective July 1, 2023, SB 1718 preempts local governments from creating, utilizing, or allowing to be utilized any form of identification document for someone here illegally. The bill also establishes that out-of-state identifications created for those in the U.S. illegally will not be recognized or permitted for use in Florida.
SB 1718 creates a third-degree felony for an unauthorized alien who knowingly uses a false identification document or fraudulently uses another person's identification document to obtain employment. It also prohibits a county or municipality from providing funds to any person, entity, or organization for the purpose of issuing an identification card or other document to an individual who does not provide proof of lawful presence in the U.S.
Lastly, the bill prohibits a person from operating a motor vehicle if his or her driver’s license is issued by another state that exclusively provides such a license to undocumented immigrants who are unable to prove lawful presence in the U.S. when the licenses are issued.
NOTE: Individuals who are pulled over by law enforcement and do not have identification approved for driving in Florida will be issued a citation for driving without a license.
What are the impacts on medical treatment data under SB 1718?
Effective July 1, 2023, SB 1718 requires any hospital that accepts Medicaid to include a question on its admission or registration forms inquiring about whether the patient is a U.S. citizen, is lawfully present in the U.S., is not lawfully present in the U.S., or who declines to answer the question.
NOTE: Answers to this question will not prevent medical care from being issued, and the patient’s response will not be reported to immigration authorities.
Each hospital is required to provide a quarterly report to the Agency for Health Care Administration (AHCA) detailing the number of emergency department visits or hospital admissions by patients who responded to the above question in each category. The reports may not require the personal identifying information of responding patients. By March 1 of each year, AHCA must provide a report to the Florida Governor, President of the Senate, and Speaker of the House of Representatives detailing data collected over the previous year under this section and quantifying costs associated with uncompensated care for aliens who are not lawfully present in the U.S.
NOTE: Hospitals are required only to report the numbers of each type of patient (citizen, lawfully present, illegally present, or declined to answer) who utilize their service but are not required to state the patient’s name or other personal identifiers.
Questions?
Contact GrayRobinson Shareholder and Government Affairs Advisor Chris Dawson or a member of the Government Affairs and Lobbying Section.