On January 1, Section 448.095 of the Florida Statutes took effect. Much of the attention on the new statute has focused on the requirement that public employers and contractors and subcontractors enroll in and use the federal government’s E-Verify system. However, the statute also imposes an obligation on private employers that goes beyond the federal regulations governing the Form I-9 process.
The E-Verify Requirement
Beginning January 1, 2021, every public employer, contractor, and subcontractor must register with and use E-Verify to verify the work authorization of all newly hired employees. A contractor is a person or entity that has entered into or is attempting to enter into a contract with a public employer to provide labor, supplies, or services to the public employer in exchange for salary, wages, or other remuneration. A public employer includes any state, regional, county, local or municipal government, public school, community college, or state university.
The Statute’s Impact on Private Employers
Beginning January 1, 2021, private employers must verify the employment authorization of any newly hired employee. The private employer must verify employment eligibility either (1) using the E-Verify system or (2) requiring the person to provide the same documentation required by the Form I-9 process and retain a copy of the documentation for three years.
How is the State Statute Different from the Federal I-9 Rules?
- The Florida statute requires employers to copy and retain the documentation the employee submits to establish his or her work authorization and identity. The federal I-9 regulations do not mandate copying and retaining the documents the employee submits. Florida employers must start copying and retaining the I-9 documentation.
- The Florida statute requires private employers to retain a copy of the documentation for at least three years after the person’s initial date of employment. The federal I-9 regulations require the employer to retain I-9 documentation for three years after the date of hire or one year after the date of termination, whichever is longer. The federal rule could require the employer to retain the documents longer than the new state statute. Continue to follow the federal document retention rule; if an employer complies with the federal requirement, it will comply with Florida’s three year retention requirement.
The Bottom Line
Unless they participate in E-Verify, Florida employers who have not previously copied and retained the documents submitted as part of the I-9 process to prove identity and work authorization must start copying and retaining the documents to comply with Florida Statutes Section 448.095. Keep the documents for at least three years after the date of hire or one year after termination, whichever is longer.