Bill Text: FL S0164 | 2019 | Regular Session | Introduced


Bill Title: Verification of Employment Eligibility

Spectrum: Partisan Bill (Republican 3-0)

Status: (Introduced) 2019-01-10 - Referred to Judiciary; Commerce and Tourism; Appropriations Subcommittee on Transportation, Tourism, and Economic Development; Appropriations [S0164 Detail]

Download: Florida-2019-S0164-Introduced.html
       Florida Senate - 2019                                     SB 164
       
       
        
       By Senator Bean
       
       
       
       
       
       4-00560-19                                             2019164__
    1                        A bill to be entitled                      
    2         An act relating to the verification of employment
    3         eligibility; defining terms; requiring employers to
    4         register with and use the E-Verify system beginning on
    5         a specified date to verify the employment eligibility
    6         of new employees; requiring the Department of Economic
    7         Opportunity to order certain agencies to suspend an
    8         employer’s license under certain circumstances;
    9         prohibiting an employer from knowingly employing an
   10         unauthorized alien; authorizing certain persons to
   11         file a specified complaint with the department;
   12         prohibiting the filing of a complaint based on race,
   13         color, or national origin; providing that a person who
   14         knowingly files a false or frivolous complaint commits
   15         a misdemeanor of the second degree; providing
   16         responsibilities and powers of the department relating
   17         to notice, investigations, and subpoenas for the
   18         production of records; prohibiting the department from
   19         independently making a final determination regarding
   20         whether an employee is an unauthorized alien;
   21         requiring the department to notify the United States
   22         Immigration and Customs Enforcement Agency and
   23         specified law enforcement agencies of certain
   24         violations; requiring the department to order certain
   25         employers to take specified actions after the finding
   26         of a violation; providing for the suspension of an
   27         employer’s license upon the finding of certain
   28         violations; providing civil immunity for an employer
   29         registered with and using the E-Verify system;
   30         providing specified immunity and nonliability for an
   31         employer who complies in good faith with the E-Verify
   32         system; requiring the department to maintain a public
   33         database containing certain information and make such
   34         information available on its website; authorizing the
   35         department to apply for a judicial order directing an
   36         agency or employer to comply with an order issued by
   37         the department; creating a rebuttable presumption for
   38         certain employers that the employer did not knowingly
   39         employ an unauthorized alien; authorizing an employer
   40         or employee to seek an injunction under certain
   41         circumstances; providing that certain actions by an
   42         employer constitute a deceptive and unfair trade
   43         practice; providing that an employee aggrieved by such
   44         actions has a private cause of action against the
   45         employer and providing available remedies; providing
   46         that a cause of action does not exist against an
   47         employer under specified circumstances; providing
   48         construction; creating s. 287.137, F.S.; defining
   49         terms; requiring public employers, contractors, and
   50         subcontractors to register with and use the E-Verify
   51         system; prohibiting such entities from entering into a
   52         contract unless each party to the contract registers
   53         with and uses the E-Verify system; requiring a
   54         subcontractor to provide certain certification to a
   55         contractor, which the contractor must maintain for a
   56         specified period of time; authorizing the termination
   57         of a contract under certain conditions; providing that
   58         such termination is not a breach of contract;
   59         authorizing a challenge to such termination;
   60         prohibiting a contractor from being awarded a public
   61         contract under certain circumstances; providing
   62         construction; providing an effective date.
   63          
   64  Be It Enacted by the Legislature of the State of Florida:
   65  
   66         Section 1. Definitions; use of E-Verify system required for
   67  private employers; business licensing enforcement; private right
   68  of action for wrongfully discharged employee.—
   69         (1)DEFINITIONS.—As used in this section, the term:
   70         (a)“Agency” means an agency, department, board, or
   71  commission of this state or a county, municipality, or town
   72  issuing a license to operate a business in this state.
   73         (b)“Department” means the Department of Economic
   74  Opportunity.
   75         (c)“E-Verify system” means an Internet-based system
   76  operated by the United States Department of Homeland Security
   77  that allows participating employers to electronically verify the
   78  employment eligibility of newly hired employees.
   79         (d)“Employee” means a person who performs labor or
   80  services for an employer in exchange for salary, wages, or other
   81  remuneration. The term does not include a licensed independent
   82  contractor as defined in federal laws or regulations.
   83         (e)“Employer” means a person or entity that employs
   84  persons to perform labor or services in exchange for salary,
   85  wages, or other remuneration. The term does not include:
   86         1.A government employer;
   87         2.The occupant or owner of a private residence who hires:
   88         a.Casual labor, as defined in s. 443.036, Florida
   89  Statutes, to be performed entirely within the private residence;
   90  or
   91         b.A licensed independent contractor, as defined in federal
   92  laws or regulations, to perform a specified portion of labor or
   93  services; or
   94         3.An employee leasing company licensed pursuant to part XI
   95  of chapter 468 that enters into a written agreement or
   96  understanding with a client company which places the primary
   97  obligation for compliance with this section upon the client
   98  company. In the absence of a written agreement or understanding,
   99  the term includes an employee leasing company.
  100         (f)“Knowingly employ an unauthorized alien” has the same
  101  meaning as in 8 U.S.C. s. 1324a. The term shall be interpreted
  102  consistently with 8 U.S.C. s. 1324a and any applicable federal
  103  rules or regulations.
  104         (g)“License” means a franchise, permit, certificate,
  105  approval, registration, charter, or similar form of
  106  authorization required by state law and issued by an agency for
  107  the purpose of operating a business in this state. The term
  108  includes, but is not limited to:
  109         1.An article of incorporation.
  110         2.A certificate of partnership, partnership registration,
  111  or article of organization.
  112         3.A grant of authority issued pursuant to state or federal
  113  law.
  114         4.A transaction privilege tax license.
  115         (h)“Unauthorized alien” means a person who is not
  116  authorized under federal law to be employed in the United
  117  States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
  118  be interpreted consistently with that section and any applicable
  119  federal rules or regulations.
  120         (2)VERIFICATION OF EMPLOYMENT ELIGIBILITY; SUSPENSION OF
  121  BUSINESS LICENSE.—
  122         (a)Beginning January 1, 2020, an employer shall, after
  123  making an offer of employment which has been accepted by a
  124  person, use the E-Verify system to verify such person’s
  125  employment eligibility. Verification must occur within the
  126  period stipulated by applicable federal rules or regulations.
  127  However, an employer is not required to verify the employment
  128  eligibility of a continuing employee hired before the date of
  129  the employer’s registration with the E-Verify system.
  130         (b)If an employer does not register with the E-Verify
  131  system, the department must order the appropriate agency to
  132  suspend all applicable licenses held by the employer until the
  133  employer registers with the E-Verify system and provides the
  134  department with an affidavit stating such fact.
  135         (3)EMPLOYMENT OF UNAUTHORIZED ALIENS; PROHIBITION; FALSE
  136  AND FRIVOLOUS COMPLAINTS; VIOLATION; CLASSIFICATION; SUSPENSION
  137  AND REVOCATION OF LICENSE.—Beginning January 1, 2020:
  138         (a)An employer may not knowingly employ an unauthorized
  139  alien.
  140         (b)A person who has a good faith belief that an employer
  141  knowingly employs, or has within the last 90 calendar days
  142  knowingly employed, an unauthorized alien may file a complaint
  143  with the department.
  144         (c)A complaint may not be based on race, color, or
  145  national origin, except to the extent permitted by state or
  146  federal law.
  147         (d)A person who knowingly files a false or frivolous
  148  complaint under this subsection commits a misdemeanor of the
  149  second degree, punishable as provided in s. 775.082 or s.
  150  775.083, Florida Statutes.
  151         (e)Upon the receipt of a valid complaint of a violation of
  152  paragraph (a), the department shall notify the employer of the
  153  complaint and direct the employer to notify any employees named
  154  in the complaint.
  155         (f)The department shall investigate whether a violation of
  156  paragraph (a) has occurred and hold an administrative hearing at
  157  which the employer has the right to counsel and may present any
  158  evidence it desires. The department shall request that the
  159  Federal Government verify, pursuant to 8 U.S.C. s. 1373(c), the
  160  citizenship or immigration status of any employee named in the
  161  complaint, and the department must rely upon such verification.
  162  The department may not independently make a final determination
  163  as to whether an employee is an unauthorized alien.
  164         (g)The department may issue a subpoena for an employer to
  165  produce employment records that relate to employment
  166  recruitment, hiring, or termination policies, practices, or acts
  167  relating to the investigation of a valid complaint of a
  168  violation of paragraph (a).
  169         (h)Upon finding that an employer has violated paragraph
  170  (a), the department shall notify:
  171         1.The United States Immigration and Customs Enforcement
  172  Agency of the identity of the unauthorized alien and, if known,
  173  the physical address at which the unauthorized alien resides.
  174         2.The local law enforcement agency of the jurisdiction in
  175  which the unauthorized alien resides.
  176         (i)1.Upon finding that an employer has violated paragraph
  177  (a), the department shall order the employer to:
  178         a.Terminate the employment of all unauthorized aliens; and
  179         b.File a sworn affidavit with the department within 10
  180  calendar days after receipt of the order. The affidavit must
  181  state that the employer has corrected such violation by:
  182         (I)Terminating the employment of all unauthorized aliens;
  183  or
  184         (II)Attempting to terminate the employment of all
  185  unauthorized aliens but such termination is being challenged in
  186  a court of competent jurisdiction.
  187         2.If the employer fails to file the affidavit under
  188  subparagraph 1., the department shall order the appropriate
  189  agencies to suspend all applicable licenses held by the employer
  190  until the affidavit is filed. Notwithstanding any other law, the
  191  suspended licenses shall be deemed to have been reinstated upon
  192  the filing of the affidavit. During the pendency of any court
  193  action or challenge to an E-Verify system determination, the 10
  194  calendar-day period shall be tolled.
  195         3.Licenses subject to suspension under subparagraph 2.
  196  include all licenses that are held by the employer that are
  197  necessary to operate the employer’s business at the specific
  198  location at which the unauthorized alien performed work. If a
  199  license is not necessary to operate the employer’s business at
  200  such location, but a license is necessary to operate the
  201  employer’s business in general, the licenses subject to
  202  suspension under subparagraph 2. shall include all licenses held
  203  by the employer at the employer’s primary place of business.
  204         (j)Upon finding that a second or subsequent violation of
  205  paragraph (a) occurred during a 2-year period, the department
  206  shall order the appropriate agencies to suspend, for at least 30
  207  calendar days, all licenses held by the employer that are
  208  necessary to operate the employer’s business at the specific
  209  location at which the unauthorized alien performed work. If a
  210  license is not necessary to operate the employer’s business at
  211  such location, but a license is necessary to operate the
  212  employer’s business in general, the department shall order the
  213  appropriate agencies to suspend, for at least 30 calendar days,
  214  all licenses held by the employer at the employer’s primary
  215  place of business.
  216         (k)1.An employer registered with and using the E-Verify
  217  system may not be held civilly liable in a cause of action for
  218  the employer’s:
  219         a.Unlawful hiring of an unauthorized alien if the
  220  information obtained from the E-Verify system indicated that the
  221  person’s work authorization status was not that of an
  222  unauthorized alien; or
  223         b.Refusal to hire a person if the information obtained
  224  from the E-Verify system indicated that the person’s work
  225  authorization status was that of an unauthorized alien.
  226         2.An employer who in good faith registers with and uses
  227  the E-Verify system is considered to have complied with the
  228  requirements of 8 U.S.C. s. 1324a(b) and may not be held liable
  229  for any damages and shall be immune from any legal cause of
  230  action brought by any person or entity, including former
  231  employees, for the use of and reliance upon any incorrect
  232  information obtained from the E-Verify system, including any
  233  incorrect information obtained as a result of an isolated,
  234  sporadic, or accidental technical or procedural failure, when
  235  determining final action on a person’s work authorization
  236  status.
  237         (l)The department shall maintain a public database
  238  containing copies of all orders issued pursuant to this
  239  subsection and shall make such information available on its
  240  website.
  241         (m)If the department determines that an agency or employer
  242  has failed to comply with an order under this subsection, the
  243  department may apply to the circuit court for a judicial order
  244  directing the agency or employer to comply with such order.
  245         (n)For purposes of this subsection, compliance with
  246  paragraph (2)(a) creates a rebuttable presumption that an
  247  employer did not knowingly employ an unauthorized alien in
  248  violation of paragraph (a).
  249         (4)INJUNCTION.—At any time after the department has
  250  notified an employer that a valid complaint of a violation of
  251  paragraph (3)(a) was received, and up to 30 calendar days after
  252  the date on which the department issues an order pursuant to
  253  paragraph (3)(i), the employer subject to the complaint, or any
  254  employee who is alleged to be an unauthorized alien, may
  255  challenge and seek to enjoin the enforcement of this section
  256  before a court of competent jurisdiction.
  257         (5)DECEPTIVE AND UNFAIR TRADE PRACTICE.—
  258         (a)An employer commits a deceptive and unfair trade
  259  practice in violation of part II of chapter 501, Florida
  260  Statutes, if it discharges an employee who is a United States
  261  citizen or resident alien, as defined in s. 379.101(31), Florida
  262  Statutes, while knowingly employing an unauthorized alien at the
  263  same job site or in the same job classification elsewhere in
  264  this state.
  265         (b)The discharged employee has a private cause of action
  266  against the employer for a violation of this subsection. The
  267  available remedies to the discharged employee are reinstatement,
  268  back pay, court costs, and attorney fees. Criminal or civil
  269  sanctions, including fines, may not be imposed against an
  270  employer for a violation of this subsection.
  271         (c)A cause of action under this subsection does not exist
  272  against an employer who, on the date it discharged an employee
  273  as described in paragraph (a), was registered with and used the
  274  E-Verify system to verify a person’s work authorization status.
  275         (6)CONSTRUCTION.—This section shall be enforced without
  276  regard to race, color, or national origin and shall be construed
  277  in a manner so as to be fully consistent with any applicable
  278  federal laws or regulations.
  279         Section 2. Section 287.137, Florida Statutes, is created to
  280  read:
  281         287.137Verification of work authorization status; public
  282  employers.—
  283         (1)As used in the section, the term:
  284         (a)“Contractor” means a person or entity that has entered
  285  into, or is attempting to enter into, a contract with a public
  286  employer to provide labor, supplies, or services to such
  287  employer in exchange for salary, wages, or other remuneration.
  288         (b)“E-Verify system” means an Internet-based system
  289  operated by the United States Department of Homeland Security
  290  that allows participating employers to electronically verify the
  291  employment eligibility of newly hired employees.
  292         (c)“Public employer” means a department, agency, or
  293  political subdivision of this state that enters into, or
  294  attempts to enter into, a contract with a contractor.
  295         (d)“Subcontractor” means a person or entity that provides
  296  labor, supplies, or services to or for a contractor or another
  297  subcontractor in exchange for salary, wages, or other
  298  remuneration.
  299         (e)“Unauthorized alien” means a person who is not
  300  authorized under federal law to be employed in the United
  301  States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
  302  be interpreted consistently with that section and any applicable
  303  federal rules or regulations.
  304         (2)(a)Every public employer, contractor, and subcontractor
  305  shall register with and use the E-Verify system to verify the
  306  work authorization status of all new employees.
  307         (b)A public employer, contractor, or subcontractor may not
  308  enter into a contract under this section unless each party to
  309  the contract registers with and uses the E-Verify system.
  310         (3)(a)If a contractor enters into a contract with a
  311  subcontractor, the subcontractor shall certify to the contractor
  312  in a manner that does not violate federal law that the
  313  subcontractor, at the time of such certification, does not
  314  employ, contract, or subcontract with an unauthorized alien.
  315         (b)A contractor shall maintain a copy of such
  316  certification for the duration of the contract with the
  317  subcontractor.
  318         (4)(a)A public employer, contractor, or subcontractor who
  319  has a good faith belief that a person or entity with which it is
  320  contracting has knowingly violated this section shall terminate
  321  the contract with the person or entity.
  322         (b)A public employer that has a good faith belief that a
  323  subcontractor knowingly violated this section, but the
  324  contractor otherwise complied with this section, shall promptly
  325  notify the contractor and order the contractor to immediately
  326  terminate the contract with the subcontractor.
  327         (c)A contract terminated pursuant to paragraph (a) or
  328  paragraph (b) is not a breach of contract and may not be
  329  considered as such.
  330         (d)A public employer, contractor, or subcontractor may
  331  file an action with a circuit or county court to challenge a
  332  termination under paragraph (a) or paragraph (b) no later than
  333  20 calendar days after the date on which the contract was
  334  terminated.
  335         (e)If a public employer terminates a contract with a
  336  contractor pursuant to paragraph (a), the contractor may not be
  337  awarded a public contract for at least 1 year after the date on
  338  which the contract was terminated.
  339         (5)This section shall be construed in a manner so as to be
  340  fully consistent with any applicable federal laws or
  341  regulations.
  342         Section 3. This act shall take effect July 1, 2019.

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