Executive Summary: On May 10, 2023, Florida Governor Ron DeSantis signed into law a new immigration bill, SB 1718. While the wide ranging bill has implications on a variety of subjects from health care, driver’s licenses and human smuggling, this alert will focus on its employment related implications. The new law places Florida among the 20 states that require E-Verify for some or all employees. Beginning on July 1, 2023, private employers with more than 25 employees will be required to use E-Verify for all new hires. Notably, Florida public employers and contractors have been required to use E-Verify since January 1, 2021.
What is E-Verify?
E-Verify is an online employment verification system operated by the federal government. It is not a substitute for the I-9 process, but rather an additional method of employment verification. Employers that use E-Verify transcribe the information from each I-9 into E-Verify, and the system verifies whether the information provided by the employee is accurate and whether the employee is authorized to work in the United States. Federal law does not require employers to use E-Verify, aside from certain federal contractors. Over the last decade or more, various states have implemented different requirements regarding the use of E-Verify, and employers operating in multiple states face a patchwork of laws.
What does SB 1718 Require for Employers?
Beginning on July 1, 2023, private employers with more than 25 employees will be required to use E-Verify to verify that newly hired employees are legally authorized to work in the United States. The employment-related provisions of SB 1718 amend existing Florida Statute 448.095. An employer may not employ anyone who is not authorized to work in the United States. Use of the E-Verify system creates a rebuttable presumption that the employer has complied with the laws on employment verification.
For purposes of SB 1718, an “employee” is defined as “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 direct the employee in the material details of how the work is to be performed.” Excluded from this definition are independent contractors and individuals hired by the occupant or owner of a private residence to engage in casual labor that is performed solely in a private residence, such as house cleaning and handyman work.
If E-Verify is unavailable for three business days after the employee begins working, the employer is required to use Form I-9 to verify employment eligibility and is excused from using E-Verify. The employer must document the unavailability of E-Verify by retaining a screenshot from each day showing the employer’s inability to access the system. Employers must retain this documentation, as well as copies of the documentation provided by the employee and the results of a successful E-Verify search, for a period of at least three years.
What Are the Penalties for Noncompliance?
Enforcement powers are vested in the Florida Department of Law Enforcement, the Attorney General, the State Attorney, and the Florida Department of Economic Opportunity (DEO), any of which are permitted to request that employers provide verification of a new employee’s employment eligibility.
Beginning on July 1, 2024, employers are subject to penalties imposed by the DEO for noncompliance. If the DEO determines that an employer has failed to use E-Verify to verify employment eligibility as required, it will issue a determination of noncompliance that provides the employer with 30 days to cure the noncompliance. If the DEO determines that an employer failed to use E-Verify three times in any 24-month period, the employer will be subject to a fine of $1,000 per day and revocation of state licenses until the noncompliance is cured.
The DEO is further granted authority to determine whether an employer has “knowingly employed an unauthorized alien” without verifying their employment eligibility. If an employer is found to have “knowingly employed an unauthorized alien,” the employer will be required to repay any economic development incentives that it has received and will be placed on a one-year probation, which will require quarterly reporting to the DEO to demonstrate compliance.
If the employer has a subsequent violation within 24 months of the previous violation, it is subject to the suspension or revocation of all state licenses, based on the number of unauthorized aliens employed, as follows:
- 1 to 10 unauthorized employees: a suspension of all applicable licenses for up to 30 days;
- 11 to 50 unauthorized employees: suspension of all applicable licenses for up to 60 days;
- More than 50 unauthorized employees: all applicable licenses revoked.
The Bottom Line
To be ready for this new law, employers need to ensure I-9s for existing employees are compliant with existing law and need to be ready to use E-Verify for all new hires when the law goes into effect on July 1, 2023.