On his first day in office as Florida’s governor, Rick Scott signed Executive Order 11-02, mandating that state agencies under the direction of the governor to use the federal government’s E-Verify system to verify the work authorization and identity of all current employees and new hires.  The Executive Order also required that all agencies under the direction of the governor require all contractors use the E-Verify system to verify the employment eligibility of (1) all persons employed during the contract term by the contractor to perform employment duties within Florida and (2) all persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency.  We sent an alert to clients at the time and noted that the Governor’s Executive Order seemed to run afoul of the federal government’s E-Verify rules.

Pursuant to the Memorandum of Understanding that an employer must sign to participate in the federal government’s E-Verify system, companies participating in E-Verify may only verify new hires and not existing employees. The only exception to this prohibition applies to federal government contractors mandated to use E-Verify as a term of their federal government contract.  Federal contractors must use E-Verify to verify the employment eligibility of (1) all persons the contractor hires during the contract term of the federal contract to work in the U.S. and (2) all persons assigned by the federal contractor to work on the contract in the United States, whether a current employee or a new hire.  Federal contractors may opt to use E-Verify to verify the employment eligibility of all employees.

Presumably because of the conflict between Executive Order 11-02 and the federal government’s E-Verify rules, in late May, Governor Scott issued Executive Order No. 11-116, superseding Executive Order 11-02.  The new Executive Order limits the E-Verify requirement to new hires, only.  Section 1 of the Executive Order requires agencies under the governor’s direction to verify employment eligibility of all new employees through the federal government’s E-Verify system.  Section 2 requires state agencies under the governor’s direction to require contractors for goods and services to use E-Verify to verify the employment eligibility of all new hires during the term of the contract.  Section 2 also includes a “flow down” requirement, whereby the covered state contractor must require its subcontractors to use E-Verify for all new hires during the term of the contract.