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If you attended our webinar “Fakes, Frauds and Factual Documents – Do You Really Know How to Fill Out an I-9 Form?” on March 21 or read my colleague, Marco Paredes’ Rotunda Report, then you may recall that the Florida Legislature is considering bills that would amend Section 448.095 of the Florida Statutes, Florida’s state law requiring E-Verify or I-9 compliance.  Section 448.095 took effect on January 1, 2021 and requires every public employer, contractor, and subcontractor to register with and use E-Verify to verify the work authorization of all newly hired employees.  The statute also requires private employers to verify the employment authorization of any newly hired employee either by: (1) using the E-Verify system or (2) requiring the person to provide the same documentation required by the Form I-9 process.  The statute requires employers who do not use E-Verify to copy and retain the documentation the employee submits to establish his or her work authorization and identity.  The employer must retain a copy of the documentation for at least three years after the person’s initial date of employment. 

A bill working its way through the Florida Senate, SB 1718, changes the document retention requirements under the current statute:

  1. Public employers, contractors, and subcontractors will be required to keep a copy of the official verification the E-Verify system generates and any documents used to obtain the verification for five years after E-Verify generates the verification.
  2. Private employers must retain for at least five years:
    • After the initial date of employment, a copy of the documentation the employee presented to establish identity and work authorization.
    • After the date the E-Verify verification is generated, a copy of the E-Verify verification and any supporting documents used to E-Verify the employee.

Failure to comply with the statute can lead to the suspension of the employer’s licenses in the state.  Continued noncompliance can result in the revocation of all licenses.  The bill also provides for fines of $5,000 for each unauthorized alien the employer knowingly employed because of the employer’s noncompliance with the statute.

The Florida House has its own E-Verify bill, HB 1617.  The House bill requires all private employers to use E-Verify.  In addition, private employers would need to keep a copy of the verification the E-Verify system generates as well as any supporting documentation used to E-Verify the employee.  Private employers would need to retain these documents for three years after the date the E-Verify system generates the verification.  The House bill also allows any person who in good faith believes an employer is employing an unauthorized alien to file a complaint with the Department of Economic Opportunity.

We will monitor the progress of these bills and advise you of any changes to Florida Statutes Section 448.095.