Bill Text: FL H0691 | 2011 | Regular Session | Introduced

Bill Title: Verification of Employment Eligibility

Spectrum: Partisan Bill (Republican 5-0)

Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [H0691 Detail]

Download: Florida-2011-H0691-Introduced.html
HB 691

A bill to be entitled
2An act relating to the verification of employment
3eligibility; defining terms; requiring every employer to
4use the Employment Authorization Program to verify the
5employment eligibility of each employee on or after a
6specified date; providing that a business that does not
7use the E-Verify system to verify the employment
8eligibility of the employee shall lose its license to do
9business in this state until the business has registered
10with the E-verify system; requiring that each verification
11be made in accordance with certain provisions of federal
12law; prohibiting an employer from employing an
13unauthorized alien; authorizing certain persons to file a
14complaint with the Department of Business and Professional
15Regulation or the Agency for Workforce Innovation alleging
16that an employer has employed an unauthorized alien;
17prohibiting the filing of a complaint based on race,
18color, or national origin; providing that a person who
19knowingly files a false and frivolous complaint commits a
20misdemeanor of the second degree; providing criminal
21penalties; requiring the department or the Agency for
22Workforce Innovation to notify the employer upon receipt
23of a complaint; requiring the department or the Agency for
24Workforce Innovation to investigate whether a violation
25has occurred; authorizing the department and the Agency
26for workforce Innovation to issue a subpoena for the
27production of documents; requiring the department or the
28Agency for Workforce Innovation to request that the
29Federal Government verify the employment eligibility of
30any employee named in a complaint; prohibiting the
31department or the Agency for Workforce Innovation from
32independently making a final determination regarding
33whether an employee is authorized to be employed in the
34United States; requiring the department or the Agency for
35Workforce Innovation to notify certain entities after
36determining that the employer has employed an unauthorized
37alien; prohibiting the department or the Agency for
38Workforce Innovation from acting on a complaint for a
39violation of law occurring before a specified date;
40requiring the department or the Agency for Workforce
41Innovation to order an employer to take certain action
42upon a first violation of the prohibition against hiring
43an unauthorized alien; requiring that certain licenses of
44an employer be suspended if the employer fails to file an
45affidavit confirming the termination of employment of an
46unauthorized alien; providing for reinstatement of such
47licenses under certain circumstances; requiring that the
48department or the Agency for Workforce Innovation take
49certain action against an employer for a second violation
50within a specified period following the prohibition
51against hiring an unauthorized alien; requiring the Agency
52for Workforce Innovation to maintain a public database
53containing certain information and make such information
54available on its website; authorizing the department or
55the Agency for Workforce Innovation to apply to the
56appropriate circuit court for a judicial order directing
57an employer to comply with an order issued by the
58department or the Agency for Workforce Innovation;
59creating a rebuttable presumption for certain employers
60that the employer did not knowingly employ an unauthorized
61alien; authorizing an employer or employee to seek an
62injunction under certain circumstances; providing that
63certain actions by an employer constitute an unfair trade
64practice; providing that an employee aggrieved by such
65actions has a private cause of action against the employer
66for a deceptive and unfair trade practice; providing for
67an award of court costs and attorney's fees; providing
68that a cause of action does not exist against an employer
69participating in the E-Verify system on the date of such
70actions; providing for construction of the act; creating
71s. 287.135, F.S.; defining terms; requiring every public
72employer to register with and participate in the E-Verify
73system for specified purposes; prohibiting a public
74employer, contractor, or subcontractor from entering into
75a contract for the physical performance of services in
76this state unless the contractor or subcontractor
77registers and participates in the system; requiring that
78subcontractors certify certain information to contractors
79by specified means; requiring that a contractor maintain a
80copy of the certification for a specified period;
81authorizing a contractor to terminate a contract with a
82subcontractor under certain conditions; providing that
83such termination is not a breach of contract; authorizing
84a subcontractor to challenge a termination within a
85specified period; requiring that a public contractor
86terminate a contract if the contractor or subcontractor is
87in violation of the act; providing that such termination
88is not a breach of contract; authorizing a contractor or
89subcontractor to challenge such a termination within a
90specified period; providing guidelines for interpretation
91of the provisions of the act; providing for severability;
92providing an effective date.
94Be It Enacted by the Legislature of the State of Florida:
96     Section 1.  Use of E-verify system required for private
97employers; business licensing enforcement; private right of
98action for displaced worker.-
99     (1)  DEFINITIONS.-As used in this section, the term:
100     (a)  "Agency" means an agency, department, board, or
101commission of this state or a county, municipality, or town
102issuing a license for the purpose of operating a business in
103this state.
104     (b)  "Department" means the Department of Business and
105Professional Regulation.
106     (c)  "E-Verify system" means the Employment Authorization
107Program, formerly the "Basic Pilot Program," under Pub. L. No.
108104-208, Div. C, Title IV, Subtitle A, 110 Stat. 3009-655 (Sept.
10930, 1996), as amended, or any successor program designated by
110the Federal Government for verification that an employee is an
111employment-authorized alien.
112     (d)  "Employee" means any person who performs employment
113services in this state for an employer pursuant to an employment
114relationship between the person and employer. An employee does
115not include an independent contractor.
116     (e)  "Employer" means any individual or type of
117organization transacting business in this state which holds or
118has applied for a license issued by an agency and employs
119individuals who perform employment services. The term does not
120include an entity that hires an independent contractor to
121perform work or the occupant or owner of a private residence who
122hires casual domestic labor to perform work customarily
123performed by a homeowner entirely within a private residence.
124     (f)  "License" means a license, permit, certificate,
125approval, registration, charter, or similar form of
126authorization required by law and issued by an agency for the
127purpose of operating a business. A license includes, but is not
128limited to:
129     1.  Articles of incorporation.
130     2.  A certificate of partnership, a partnership
131registration, or articles of organization.
132     3.  A grant of authority issued pursuant to state or
133federal law.
134     4.  A transaction privilege tax license.
135     (g)  "Unauthorized alien" means an alien is not authorized
136under federal law to be employed in the United States, as
137described in 8 U.S.C. 1324a(h)(3). This term shall be
138interpreted consistently with that section and any applicable
139federal rules or regulations.
140     (h)  "Knowingly employ an unauthorized alien" has the same
141meaning as prescribed in 8 U.S.C. 1324a. The term shall be
142interpreted consistently with s. 1324a and any federal rule or
143regulation applicable to the unlawful employment of aliens.
146     (a)  Beginning January 1, 2012, every employer shall, after
147making an offer of employment which has been accepted by an
148employee, use the E-Verify system to verify the employment
149eligibility of the employee. Verification must occur within the
150period stipulated by federal law or regulations after the hiring
151of the employee. However, an employer is not required to verify
152the employment eligibility of a continuing employee hired before
153the date of the employer's registration with the system.
154     (b)  A business that has not complied with paragraph (a)
155shall lose its license to do business in this state until the
156business has registered with the E-verify system and provided
157the department with an affidavit stating that the business has
158registered with the E-verify system.
162     (a)  An employer may not employ an unauthorized alien.
163     (b)  A person who has actual or constructive knowledge that
164an employer employs, or has within the last 90 days employed, an
165unauthorized alien may file a complaint with the department or
166the Agency for Workforce Innovation.
167     (c)  A complaint may not be based on race, color, or
168national origin, except to the extent permitted by the United
169States Constitution or the State Constitution.
170     (d)  A person who knowingly files a false and frivolous
171complaint under this subsection commits a misdemeanor of the
172second degree, punishable as provided in s. 775.082 or s.
174     (e)  Upon the receipt of a valid complaint of a violation
175of paragraph (a), the department or the Agency for Workforce
176Innovation shall notify the employer of the complaint and direct
177the employer to notify any affected employees named in the
179     (f)  The department or the Agency for Workforce Innovation
180shall investigate whether a violation has occurred and hold an
181administrative hearing at which the employer may present any
182evidence he or she desires and at which the employer has the
183right to counsel. The department or the Agency for Workforce
184Innovation shall request that the Federal Government verify,
185pursuant to 8 U.S.C. 1373(c), the employment status of any
186employee named in the complaint. The department or Agency for
187Workforce Innovation may not independently make a final
188determination as to whether a particular employee is an
189unauthorized alien. The department or agency shall rely upon
190verification of employment authorization provided by the Federal
192     (g)  The department or agency may issue a subpoena to
193produce employment records that relate to the recruitment,
194hiring, employment, or termination policies, practices, or acts
195of employment relating to the investigation of a valid
197     (h)  If the department or Agency for Workforce Innovation
198confirms that the employer has employed an unauthorized alien,
199the department or agency shall notify:
200     1.  The United States Immigration and Customs Enforcement
201Agency of the identity of the unauthorized alien and, if known,
202the alien's address or location in the state; and
203     2.  The local law enforcement agency of the presence of the
204unauthorized alien in the jurisdiction.
205     (i)  The department or Agency for Workforce Innovation may
206not act upon a complaint against any employer for any violation
207occurring before January 1, 2012.
208     (j)1.  Upon finding that an employer has violated paragraph
209(a), the department or Agency for Workforce Innovation shall
210order the employer to:
211     a.  Terminate the employment of all unauthorized aliens;
213     b.  File a sworn affidavit with the department within 10
214days after the receipt of the order. The affidavit must state
215that the employer has corrected the violation by:
216     (I)  Terminating the unauthorized alien's employment;
217     (II)  Requesting that a second or additional verification
218of the alien's employment status be authorized, by using the E-
219Verify system; or
220     (III)  Attempting to terminate the unauthorized alien's
221employment, and such termination has been challenged in a court
222of competent jurisdiction.
223     2.  If the employer fails to file the required affidavit,
224the department or Agency for Workforce Innovation shall order
225the appropriate agencies to suspend all applicable licenses held
226by the employer. All such licenses suspended shall remain
227suspended until the affidavit is filed.
229Notwithstanding any other law, the suspended licenses shall be
230deemed to have been reinstated upon the filing of the affidavit.
231During the pendency of an action, the 10-day period shall be
232tolled. The 10-day period shall also be tolled during any period
233during which the Federal Government allows an alien to challenge
234the Federal Government's determination of his or her immigration
235status or employment authorization.
236     3.  Licenses subject to suspension under this subsection
237include all licenses that are held by the employer and that are
238necessary to operate the employer's business at the location at
239which the unauthorized alien performed work. If a license is not
240necessary to operate the employer's business at the specific
241location at which the unauthorized alien performed work, but a
242license is necessary to operate the employer's business in
243general, the licenses subject to suspension under subparagraph
2442. include all licenses held by the employer at the employer's
245primary place of business.
246     4.  The department shall adopt rules pursuant to ss.
247120.536(1) and 120.54, Florida Statutes, by July 1, 2011, to
248establish procedures for an agency to exempt certain licenses
249issued by the agency which the agency determines, with the
250concurrence of the department, are unrelated to operating a
251business in this state.
252     (k)  Upon finding a second or subsequent violation of
253paragraph (a) during a 2-year period, the department or the
254Agency for Workforce Innovation shall order the appropriate
255agencies to suspend, for at least 30 days, all licenses that are
256held by the employer and that are necessary to operate the
257employer's business at the location at which the unauthorized
258alien performed work. If a license is not necessary to operate
259the employer's business at the specific location at which the
260unauthorized alien performed work, but a license is necessary to
261operate the employer's business in general, the department or
262the Agency for Workforce Innovation shall order the appropriate
263agencies to suspend all licenses held by the employer at the
264employer's primary place of business. On receipt of the order
265and notwithstanding any other law, the appropriate agencies
266shall immediately suspend such licenses for at least 30 days.
267     (l)  The Agency for Workforce Innovation shall maintain a
268public database containing copies of all orders issued pursuant
269to this section and make such information available on its
271     (m)  If the department or the Agency for Workforce
272Innovation determines that an agency or employer has failed to
273comply with an order under this section, the department or the
274Agency for Workforce Innovation may apply to the circuit court
275for a judicial order directing the agency or employer to comply
276with the order of the department or Agency for Workforce
278     (n)  For the purposes of this section, compliance with
279subsection (2) creates a rebuttable presumption that an employer
280did not knowingly employ an unauthorized alien in violation of
281paragraph (a).
282     (4)  INJUNCTION.-At any time after a complaint is received,
283an employer subject to a complaint under this section, or any
284employee of the employer who is alleged to be an unauthorized
285alien, may challenge and seek to enjoin the enforcement of this
286section before a court of competent jurisdiction.
288     (a)  An employer commits a deceptive and unfair trade
289practice in violation of part II of chapter 501, Florida
290Statutes, if he or she discharges an United States citizen or
291legal permanent resident alien employee who has applied for
292naturalization, if, on the date of discharge, an unauthorized
293alien worker was employed by the employer at the same job site
294or in the same job classification elsewhere in the state.
295     (b)  The discharged employee has a cause of action against
296the employer for civil penalties and attorney's fees for the
297deceptive and unfair trade practice.
298     (c)  The wrongfully discharged employee is entitled to
299reinstatement, back pay, court costs, and attorney's fees.
300Criminal or civil sanctions, including fines, shall not be
301imposed against an employer for a violation of this subsection.
302     (d)  A cause of action under this subsection does not exist
303against an employer who, on the date of discharge, was enrolled
304and participating in the E-Verify system.
305     (6)  CONSTRUCTION.-This section shall be enforced without
306regard to race or national origin and shall be construed in a
307manner so as to be fully consistent with any applicable
308provisions of federal law.
309     Section 2.  Section 287.135, Florida Statutes, is created
310to read:
311     287.135  Verification of immigration status; public
313     (1)  As used in the section, the term:
314     (a)  "Contractor" means a person who has entered or is
315attempting to enter into a public contract for services with a
316state agency or political subdivision.
317     (b)  "E-Verify system" means the system for electronic
318verification of the work-authorization program of the Illegal
319Immigration Reform and Immigration Responsibility Act of 1996,
320Pub. L. No. 104-208, Division C, Title IV, s. 403(a), as
321amended, and operated by the United States Department of
322Homeland Security, or a successor work-authorization program
323designated by the department or other federal agency authorized
324to verify the work-authorization status of newly hired employees
325pursuant to the Immigration Reform and Control Act of 1986, Pub.
326L. No. 99-603.
327     (c)  "Public employer" means any department, agency, or
328political subdivision of the state.
329     (d)  "Subcontractor" means any supplier, distributor,
330vendor, or firm furnishing supplies or services to or for a
331contractor or another subcontractor.
332     (2)(a)  Every public employer shall register with and
333participate in the E-Verify system for the purpose of verifying
334the work authorization status of all new employees.
335     (b)1.  A public employer may not enter into a contract for
336the physical performance of services unless the contractor
337registers and participates in the E-Verify system.
338     2.  A contractor or subcontractor may not enter into a
339contract or subcontract with a public employer in connection
340with the physical performance of services unless the contractor
341or subcontractor registers with and uses the E-Verify system for
342the purpose of verifying information of all new employees
343employed within the state.
344     (3)(a)  If a contractor uses a subcontractor, the
345subcontractor shall certify to the contractor in a manner that
346does not violate federal law that the subcontractor, at the time
347of certification, does not employ or contract with an
348unauthorized alien.
349     (b)  A contractor shall maintain a copy of the
350certification of a subcontractor throughout the duration of the
351term of a contract with the subcontractor.
352     (4)(a)  If a contractor knows that a subcontractor is in
353violation of this section, the contractor shall terminate a
354contract with the subcontractor for the violation.
355     (b)  A contract terminated pursuant to paragraph (a) is not
356a breach of contract and may not be considered as such by the
357contractor or the subcontractor.
358     (c)  A subcontractor may file an action with a circuit or
359county court having jurisdiction in the county to challenge a
360termination of a contract under paragraph (a) no later than 20
361days after the date on which the contractor terminates the
362contract with the subcontractor.
363     (5)(a)  If a public employer knows that a contractor is
364knowingly in violation of this section, the public employer
365shall immediately terminate the contract with the contractor and
366the contractor is not eligible for public contracts for 1 year
367after the date of termination. If the public employer has
368knowledge that a subcontractor has violated this section, and
369the contractor has otherwise complied with this section, the
370public employer shall promptly notify the contractor and order
371the contractor to terminate the contract with the noncompliant
373     (b)  A contract terminated pursuant to paragraph (a) is not
374a breach of contract and may not be considered as such by the
375contractor or subcontractor.
376     (c)  A contractor or subcontractor may file an action with
377a circuit or county court having jurisdiction in the county to
378challenge a termination of a contract under paragraph (a) no
379later than 20 days after the date on which the contract or
380subcontract was terminated.
381     (6)  The provisions of this section shall be construed in a
382manner so as to be fully consistent with any applicable federal
384     Section 3.  If any provision of this act or its application
385to any person or circumstance is held invalid, the invalidity
386does not affect the remaining provisions or applications of the
387act which can be given effect without the invalid provision or
388application, and to this end the provisions of this act are
390     Section 4.  This act shall take effect July 1, 2011.

CODING: Words stricken are deletions; words underlined are additions.