Last week, the Florida Legislature passed SB 1718, which, among other things, requires private employers of twenty-five or more employees to start using E-Verify for any employee hired on or after July 1, 2023. Governor DeSantis has not yet received SB 1718 from the Legislature. He must sign or veto the bill within 15 days of transmittal, or it becomes law without being signed.
You may recall that I posted about SB 1718 on our blog on April 3, 2023. The SB 1718 bill that passed the Legislature is very different from the bill I wrote about last month. The earlier version of the bill imposed no E-Verify requirement.
The SB 1718 that the Legislature passed amends two existing Florida statutes governing unauthorized employment of foreign nationals. Florida Statutes Section 448.09 makes it unlawful for an employer to knowingly employ in the State of Florida an alien who is not authorized to work in the United States. The statute empowers the Department of Economic Opportunity (DEO) to place a violating employer on probation for a year and require quarterly reporting of the employer’s compliance. If an employer violates the statute twice in two years, the DEO can suspend or revoke all of the licenses of the violating employer.
The bill also re-writes Florida Statutes Section 448.095. Consistent with existing Form I-9 requirements, all Florida employers must verify each new employee’s work authorization within three days after the first day the new employee begins working for pay. Beginning July 1, 2023, a private employer with twenty-five or more employees must use the E-Verify system to verify a new employee’s employment eligibility. The statute requires covered employers to certify on its first DEO return each calendar year that it complies with the E-Verify requirement. Employers must also retain a copy of the employment authorization documentation provided and any official verification generated for at least three years.
An employer that uses E-Verify, or if the E-Verify system is not available, the I-9 process, establishes a rebuttable presumption that it did not knowingly employ an unauthorized alien in violation of Section 448.09. Similarly, if the employer relied on the same documents to establish work authorization as specified in the I-9 regulations, the employer establishes an affirmative defense that it has not violated Section 448.09 regarding unauthorized employment.
Starting July 1, 2024, the DEO will provide employers who fail to use E-Verify thirty days to comply. If the DEO determines that an employer failed to use the E-Verify system three times in a twenty-four month period, the DEO can impose a $1,000 a day fine until the employer provides proof of compliance. The DEO is also empowered to suspend all of the employer’s licenses until the employer cures noncompliance.
Upon the Governor signing the bill into law, Florida employers with twenty-five or more employees should enroll in E-Verify to be ready to use the system for any new hires on or after July 1. Employers will only use E-Verify for new hires; E-Verify prohibits using the system for current employees. Employers are still required to complete Form I-9; E-Verify supplements the I-9 process and does not replace it.
Information about E-Verify, links to webinars, and how to enroll can be found at Home (e-verify.gov).
We will continue to post on SB 1718 and E-Verify. Stay tuned.