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Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [H0691 Detail]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

1	A bill to be entitled
2	An act relating to the verification of employment
3	eligibility; defining terms; requiring every employer to
4	use the Employment Authorization Program to verify the
5	employment eligibility of each employee on or after a
6	specified date; providing that a business that does not
7	use the E-Verify system to verify the employment
8	eligibility of the employee shall lose its license to do
9	business in this state until the business has registered
10	with the E-verify system; requiring that each verification
11	be made in accordance with certain provisions of federal
12	law; prohibiting an employer from employing an
13	unauthorized alien; authorizing certain persons to file a
14	complaint with the Department of Business and Professional
15	Regulation or the Agency for Workforce Innovation alleging
16	that an employer has employed an unauthorized alien;
17	prohibiting the filing of a complaint based on race,
18	color, or national origin; providing that a person who
19	knowingly files a false and frivolous complaint commits a
20	misdemeanor of the second degree; providing criminal
21	penalties; requiring the department or the Agency for
22	Workforce Innovation to notify the employer upon receipt
23	of a complaint; requiring the department or the Agency for
24	Workforce Innovation to investigate whether a violation
25	has occurred; authorizing the department and the Agency
26	for workforce Innovation to issue a subpoena for the
27	production of documents; requiring the department or the
28	Agency for Workforce Innovation to request that the
29	Federal Government verify the employment eligibility of
30	any employee named in a complaint; prohibiting the
31	department or the Agency for Workforce Innovation from
32	independently making a final determination regarding
33	whether an employee is authorized to be employed in the
34	United States; requiring the department or the Agency for
35	Workforce Innovation to notify certain entities after
36	determining that the employer has employed an unauthorized
37	alien; prohibiting the department or the Agency for
38	Workforce Innovation from acting on a complaint for a
39	violation of law occurring before a specified date;
40	requiring the department or the Agency for Workforce
41	Innovation to order an employer to take certain action
42	upon a first violation of the prohibition against hiring
43	an unauthorized alien; requiring that certain licenses of
44	an employer be suspended if the employer fails to file an
45	affidavit confirming the termination of employment of an
46	unauthorized alien; providing for reinstatement of such
47	licenses under certain circumstances; requiring that the
48	department or the Agency for Workforce Innovation take
49	certain action against an employer for a second violation
50	within a specified period following the prohibition
51	against hiring an unauthorized alien; requiring the Agency
52	for Workforce Innovation to maintain a public database
53	containing certain information and make such information
54	available on its website; authorizing the department or
55	the Agency for Workforce Innovation to apply to the
56	appropriate circuit court for a judicial order directing
57	an employer to comply with an order issued by the
58	department or the Agency for Workforce Innovation;
59	creating a rebuttable presumption for certain employers
60	that the employer did not knowingly employ an unauthorized
61	alien; authorizing an employer or employee to seek an
62	injunction under certain circumstances; providing that
63	certain actions by an employer constitute an unfair trade
64	practice; providing that an employee aggrieved by such
65	actions has a private cause of action against the employer
66	for a deceptive and unfair trade practice; providing for
67	an award of court costs and attorney's fees; providing
68	that a cause of action does not exist against an employer
69	participating in the E-Verify system on the date of such
70	actions; providing for construction of the act; creating
71	s. 287.135, F.S.; defining terms; requiring every public
72	employer to register with and participate in the E-Verify
73	system for specified purposes; prohibiting a public
74	employer, contractor, or subcontractor from entering into
75	a contract for the physical performance of services in
76	this state unless the contractor or subcontractor
77	registers and participates in the system; requiring that
78	subcontractors certify certain information to contractors
79	by specified means; requiring that a contractor maintain a
80	copy of the certification for a specified period;
81	authorizing a contractor to terminate a contract with a
82	subcontractor under certain conditions; providing that
83	such termination is not a breach of contract; authorizing
84	a subcontractor to challenge a termination within a
85	specified period; requiring that a public contractor
86	terminate a contract if the contractor or subcontractor is
87	in violation of the act; providing that such termination
88	is not a breach of contract; authorizing a contractor or
89	subcontractor to challenge such a termination within a
90	specified period; providing guidelines for interpretation
91	of the provisions of the act; providing for severability;
92	providing an effective date.
93
94	Be It Enacted by the Legislature of the State of Florida:
95
96	Section 1.  Use of E-verify system required for private
97	employers; business licensing enforcement; private right of
98	action for displaced worker.-
99	(1)  DEFINITIONS.-As used in this section, the term:
100	(a)  "Agency" means an agency, department, board, or
101	commission of this state or a county, municipality, or town
102	issuing a license for the purpose of operating a business in
103	this state.
104	(b)  "Department" means the Department of Business and
105	Professional Regulation.
106	(c)  "E-Verify system" means the Employment Authorization
107	Program, formerly the "Basic Pilot Program," under Pub. L. No.
108	104-208, Div. C, Title IV, Subtitle A, 110 Stat. 3009-655 (Sept.
109	30, 1996), as amended, or any successor program designated by
110	the Federal Government for verification that an employee is an
111	employment-authorized alien.
112	(d)  "Employee" means any person who performs employment
113	services in this state for an employer pursuant to an employment
114	relationship between the person and employer. An employee does
115	not include an independent contractor.
116	(e)  "Employer" means any individual or type of
117	organization transacting business in this state which holds or
118	has applied for a license issued by an agency and employs
119	individuals who perform employment services. The term does not
120	include an entity that hires an independent contractor to
121	perform work or the occupant or owner of a private residence who
122	hires casual domestic labor to perform work customarily
123	performed by a homeowner entirely within a private residence.
124	(f)  "License" means a license, permit, certificate,
125	approval, registration, charter, or similar form of
126	authorization required by law and issued by an agency for the
127	purpose of operating a business. A license includes, but is not
128	limited to:
129	1.  Articles of incorporation.
130	2.  A certificate of partnership, a partnership
131	registration, or articles of organization.
132	3.  A grant of authority issued pursuant to state or
133	federal law.
134	4.  A transaction privilege tax license.
135	(g)  "Unauthorized alien" means an alien is not authorized
136	under federal law to be employed in the United States, as
137	described in 8 U.S.C. 1324a(h)(3). This term shall be
138	interpreted consistently with that section and any applicable
139	federal rules or regulations.
140	(h)  "Knowingly employ an unauthorized alien" has the same
141	meaning as prescribed in 8 U.S.C. 1324a. The term shall be
142	interpreted consistently with s. 1324a and any federal rule or
143	regulation applicable to the unlawful employment of aliens.
144	(2)  VERIFICATION OF EMPLOYMENT ELIGIBILITY; SUSPENSION OF
145	BUSINESS LICENSE.-
146	(a)  Beginning January 1, 2012, every employer shall, after
147	making an offer of employment which has been accepted by an
148	employee, use the E-Verify system to verify the employment
149	eligibility of the employee. Verification must occur within the
150	period stipulated by federal law or regulations after the hiring
151	of the employee. However, an employer is not required to verify
152	the employment eligibility of a continuing employee hired before
153	the date of the employer's registration with the system.
154	(b)  A business that has not complied with paragraph (a)
155	shall lose its license to do business in this state until the
156	business has registered with the E-verify system and provided
157	the department with an affidavit stating that the business has
158	registered with the E-verify system.
159	(3)  EMPLOYMENT OF UNAUTHORIZED ALIENS; PROHIBITION; FALSE
160	AND FRIVOLOUS COMPLAINTS; VIOLATION; CLASSIFICATION; SUSPENSION
161	AND REVOCATION OF LICENSE.-
162	(a)  An employer may not employ an unauthorized alien.
163	(b)  A person who has actual or constructive knowledge that
164	an employer employs, or has within the last 90 days employed, an
165	unauthorized alien may file a complaint with the department or
166	the Agency for Workforce Innovation.
167	(c)  A complaint may not be based on race, color, or
168	national origin, except to the extent permitted by the United
169	States Constitution or the State Constitution.
170	(d)  A person who knowingly files a false and frivolous
171	complaint under this subsection commits a misdemeanor of the
172	second degree, punishable as provided in s. 775.082 or s.
173	775.083.
174	(e)  Upon the receipt of a valid complaint of a violation
175	of paragraph (a), the department or the Agency for Workforce
176	Innovation shall notify the employer of the complaint and direct
177	the employer to notify any affected employees named in the
178	complaint.
179	(f)  The department or the Agency for Workforce Innovation
180	shall investigate whether a violation has occurred and hold an
181	administrative hearing at which the employer may present any
182	evidence he or she desires and at which the employer has the
183	right to counsel. The department or the Agency for Workforce
184	Innovation shall request that the Federal Government verify,
185	pursuant to 8 U.S.C. 1373(c), the employment status of any
186	employee named in the complaint. The department or Agency for
187	Workforce Innovation may not independently make a final
188	determination as to whether a particular employee is an
189	unauthorized alien. The department or agency shall rely upon
190	verification of employment authorization provided by the Federal
191	Government.
192	(g)  The department or agency may issue a subpoena to
193	produce employment records that relate to the recruitment,
194	hiring, employment, or termination policies, practices, or acts
195	of employment relating to the investigation of a valid
196	complaint.
197	(h)  If the department or Agency for Workforce Innovation
198	confirms that the employer has employed an unauthorized alien,
199	the department or agency shall notify:
200	1.  The United States Immigration and Customs Enforcement
201	Agency of the identity of the unauthorized alien and, if known,
202	the alien's address or location in the state; and
203	2.  The local law enforcement agency of the presence of the
204	unauthorized alien in the jurisdiction.
205	(i)  The department or Agency for Workforce Innovation may
206	not act upon a complaint against any employer for any violation
207	occurring 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
210	order the employer to:
211	a.  Terminate the employment of all unauthorized aliens;
212	and
213	b.  File a sworn affidavit with the department within 10
214	days after the receipt of the order. The affidavit must state
215	that the employer has corrected the violation by:
216	(I)  Terminating the unauthorized alien's employment;
217	(II)  Requesting that a second or additional verification
218	of the alien's employment status be authorized, by using the E-
219	Verify system; or
220	(III)  Attempting to terminate the unauthorized alien's
221	employment, and such termination has been challenged in a court
222	of competent jurisdiction.
223	2.  If the employer fails to file the required affidavit,
224	the department or Agency for Workforce Innovation shall order
225	the appropriate agencies to suspend all applicable licenses held
226	by the employer. All such licenses suspended shall remain
227	suspended until the affidavit is filed.
228
229	Notwithstanding any other law, the suspended licenses shall be
230	deemed to have been reinstated upon the filing of the affidavit.
231	During the pendency of an action, the 10-day period shall be
232	tolled. The 10-day period shall also be tolled during any period
233	during which the Federal Government allows an alien to challenge
234	the Federal Government's determination of his or her immigration
235	status or employment authorization.
236	3.  Licenses subject to suspension under this subsection
237	include all licenses that are held by the employer and that are
238	necessary to operate the employer's business at the location at
239	which the unauthorized alien performed work. If a license is not
240	necessary to operate the employer's business at the specific
241	location at which the unauthorized alien performed work, but a
242	license is necessary to operate the employer's business in
243	general, the licenses subject to suspension under subparagraph
244	2. include all licenses held by the employer at the employer's
245	primary place of business.
246	4.  The department shall adopt rules pursuant to ss.
247	120.536(1) and 120.54, Florida Statutes, by July 1, 2011, to
248	establish procedures for an agency to exempt certain licenses
249	issued by the agency which the agency determines, with the
250	concurrence of the department, are unrelated to operating a
251	business in this state.
252	(k)  Upon finding a second or subsequent violation of
253	paragraph (a) during a 2-year period, the department or the
254	Agency for Workforce Innovation shall order the appropriate
255	agencies to suspend, for at least 30 days, all licenses that are
256	held by the employer and that are necessary to operate the
257	employer's business at the location at which the unauthorized
258	alien performed work. If a license is not necessary to operate
259	the employer's business at the specific location at which the
260	unauthorized alien performed work, but a license is necessary to
261	operate the employer's business in general, the department or
262	the Agency for Workforce Innovation shall order the appropriate
263	agencies to suspend all licenses held by the employer at the
264	employer's primary place of business. On receipt of the order
265	and notwithstanding any other law, the appropriate agencies
266	shall immediately suspend such licenses for at least 30 days.
267	(l)  The Agency for Workforce Innovation shall maintain a
268	public database containing copies of all orders issued pursuant
269	to this section and make such information available on its
270	website.
271	(m)  If the department or the Agency for Workforce
272	Innovation determines that an agency or employer has failed to
273	comply with an order under this section, the department or the
274	Agency for Workforce Innovation may apply to the circuit court
275	for a judicial order directing the agency or employer to comply
276	with the order of the department or Agency for Workforce
277	Innovation.
278	(n)  For the purposes of this section, compliance with
279	subsection (2) creates a rebuttable presumption that an employer
280	did not knowingly employ an unauthorized alien in violation of
281	paragraph (a).
282	(4)  INJUNCTION.-At any time after a complaint is received,
283	an employer subject to a complaint under this section, or any
284	employee of the employer who is alleged to be an unauthorized
285	alien, may challenge and seek to enjoin the enforcement of this
286	section before a court of competent jurisdiction.
287	(5)  DECEPTIVE AND UNFAIR TRADE PRACTICE.-
288	(a)  An employer commits a deceptive and unfair trade
289	practice in violation of part II of chapter 501, Florida
290	Statutes, if he or she discharges an United States citizen or
291	legal permanent resident alien employee who has applied for
292	naturalization, if, on the date of discharge, an unauthorized
293	alien worker was employed by the employer at the same job site
294	or in the same job classification elsewhere in the state.
295	(b)  The discharged employee has a cause of action against
296	the employer for civil penalties and attorney's fees for the
297	deceptive and unfair trade practice.
298	(c)  The wrongfully discharged employee is entitled to
299	reinstatement, back pay, court costs, and attorney's fees.
300	Criminal or civil sanctions, including fines, shall not be
301	imposed against an employer for a violation of this subsection.
302	(d)  A cause of action under this subsection does not exist
303	against an employer who, on the date of discharge, was enrolled
304	and participating in the E-Verify system.
305	(6)  CONSTRUCTION.-This section shall be enforced without
306	regard to race or national origin and shall be construed in a
307	manner so as to be fully consistent with any applicable
308	provisions of federal law.
309	Section 2.  Section 287.135, Florida Statutes, is created
310	to read:
311	287.135  Verification of immigration status; public
312	employers.-
313	(1)  As used in the section, the term:
314	(a)  "Contractor" means a person who has entered or is
315	attempting to enter into a public contract for services with a
316	state agency or political subdivision.
317	(b)  "E-Verify system" means the system for electronic
318	verification of the work-authorization program of the Illegal
319	Immigration Reform and Immigration Responsibility Act of 1996,
320	Pub. L. No. 104-208, Division C, Title IV, s. 403(a), as
321	amended, and operated by the United States Department of
322	Homeland Security, or a successor work-authorization program
323	designated by the department or other federal agency authorized
324	to verify the work-authorization status of newly hired employees
325	pursuant to the Immigration Reform and Control Act of 1986, Pub.
326	L. No. 99-603.
327	(c)  "Public employer" means any department, agency, or
328	political subdivision of the state.
329	(d)  "Subcontractor" means any supplier, distributor,
330	vendor, or firm furnishing supplies or services to or for a
331	contractor or another subcontractor.
332	(2)(a)  Every public employer shall register with and
333	participate in the E-Verify system for the purpose of verifying
334	the work authorization status of all new employees.
335	(b)1.  A public employer may not enter into a contract for
336	the physical performance of services unless the contractor
337	registers and participates in the E-Verify system.
338	2.  A contractor or subcontractor may not enter into a
339	contract or subcontract with a public employer in connection
340	with the physical performance of services unless the contractor
341	or subcontractor registers with and uses the E-Verify system for
342	the purpose of verifying information of all new employees
343	employed within the state.
344	(3)(a)  If a contractor uses a subcontractor, the
345	subcontractor shall certify to the contractor in a manner that
346	does not violate federal law that the subcontractor, at the time
347	of certification, does not employ or contract with an
348	unauthorized alien.
349	(b)  A contractor shall maintain a copy of the
350	certification of a subcontractor throughout the duration of the
351	term of a contract with the subcontractor.
352	(4)(a)  If a contractor knows that a subcontractor is in
353	violation of this section, the contractor shall terminate a
354	contract with the subcontractor for the violation.
355	(b)  A contract terminated pursuant to paragraph (a) is not
356	a breach of contract and may not be considered as such by the
357	contractor or the subcontractor.
358	(c)  A subcontractor may file an action with a circuit or
359	county court having jurisdiction in the county to challenge a
360	termination of a contract under paragraph (a) no later than 20
361	days after the date on which the contractor terminates the
362	contract with the subcontractor.
363	(5)(a)  If a public employer knows that a contractor is
364	knowingly in violation of this section, the public employer
365	shall immediately terminate the contract with the contractor and
366	the contractor is not eligible for public contracts for 1 year
367	after the date of termination. If the public employer has
368	knowledge that a subcontractor has violated this section, and
369	the contractor has otherwise complied with this section, the
370	public employer shall promptly notify the contractor and order
371	the contractor to terminate the contract with the noncompliant
372	subcontractor.
373	(b)  A contract terminated pursuant to paragraph (a) is not
374	a breach of contract and may not be considered as such by the
375	contractor or subcontractor.
376	(c)  A contractor or subcontractor may file an action with
377	a circuit or county court having jurisdiction in the county to
378	challenge a termination of a contract under paragraph (a) no
379	later than 20 days after the date on which the contract or
380	subcontract was terminated.
381	(6)  The provisions of this section shall be construed in a
382	manner so as to be fully consistent with any applicable federal
383	law.
384	Section 3.  If any provision of this act or its application
385	to any person or circumstance is held invalid, the invalidity
386	does not affect the remaining provisions or applications of the
387	act which can be given effect without the invalid provision or
388	application, and to this end the provisions of this act are
389	severable.
390	Section 4.  This act shall take effect July 1, 2011.

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