FL Bill 1718 Mandates E-Verify For All Florida Employers With 25 or More Employees

On May 9, 2023, Florida Governor Ron DeSantis signed Senate Bill 1718 (FL 1718) into law.  FL 1718 includes a provision requiring private sector employers in Florida with 25 or more employees to use the federal E-Verify system to confirm the employment eligibility of new employees.  In addition to mandating E-Verify for all Florida employers with 25 or more employees, FL 1718 also enhances the ability of state law enforcement to enforce immigration laws, requires hospitals accepting Medicaid to maintain data on patients’ immigration status (although patients may opt to “decline to answer”), restricts access to Florida drivers’ licenses (as well as State Bar licenses) and adds state civil and criminal penalties for violations of its provisions. A summary of the Mandatory E-Verify provisions of FL 1718, which will take effect on July 1, 2023, is as follows.[i]

Federal Employment Eligibility Verification regulations already require all U.S. Employers (regardless of size) to verify the identity and employment authorization of employees by completing and retaining a Form I-9, Employment Eligibility Verification Form.  The Employer must complete its portion of Form I-9 on or before the date of hire, and employees must complete and provide documentation that confirms their identity and work authorization within three days of the first day of employment. 

Since 1996, Employers have been able to use the E-Verify system, which is an Internet-based system provided by the U.S. Department of Homeland Security to electronically confirm an individual’s identity and employment eligibility in the United States.  Generally-speaking, at the Federal Level, E-Verify remains voluntary for most Employers in the United States.

FL 1718 Requires Florida Employers to Document Employment Verification Procedures for State Law Purposes, Mandates E-Verify Participation for Most Florida Employers and Creates Separate Penalties for Violations, by:

1. Making it a violation of State Law for any person to knowingly employ, hire, recruit, or refer, either for themselves or on behalf of another, for private or public employment a foreign national who is not authorized to work in the U.S.; and creates escalating penalty provisions for violations that, depending on number of undocumented workers and frequency of violations, could result in complete revocation of employer’s state business license(s).
2. Providing criminal penalties ($5,000 fine plus up to 5 years in prison) for a person who knowingly uses a false identification document or who fraudulently uses another person’s identification document for the purpose of obtaining employment, if the person using the document is not authorized to work.
3. Prohibiting an employer from continuing to employ an undocumented worker after obtaining knowledge that a person is or has become an undocumented worker.
4. Beginning on July 1, 2023, requires employers to verify each new employee’s employment eligibility within 3 business days after the first day the new employee begins working for pay.
5. Requiring private employers with 25 or more employees to use E-Verify for all new employees and retaining a copy of the documentation provided for E-Verify as well as the official verification generated by E-Verify for at least 3 years.
6. Requiring Employers to certify use of E-Verify on unemployment compensation or reemployment assistance system returns; public agencies also required to use the E-Verify to verify a new employee’s employment eligibility.
7. Enforcement: Authorizes state law enforcement agencies to request copies of documentation relied upon by the employer for employment verification purposes.
   a. Beginning July 1, 2024, state law enforcement agencies are authorized to perform random audits of businesses and, if it is determined an employer is not complying with employment verification obligations, provide the employer with 30 days to cure noncompliance;
   b. Imposes $1,000 per day fine on employers found to have failed to use E-Verify 3 times in a 24-month period, until the employer provides proof that the noncompliance is cured. Noncompliance also constitutes grounds for the suspension of all state business licenses until the noncompliance is cured.
8. Public agencies may not contract with a private entity unless each party, including subcontractors, registers with E-Verify. A public agency may terminate a contract if it has a good faith belief that the contracting entity knowingly violated the unauthorized employment provisions of the statute, without the termination constituting a breach of contract.

Companies who may be affected by these recent immigration developments should consult with counsel on individual situations. If you have any questions, please contact Gunster's Immigration Law practice.

[i] The information herein is based upon a summary published by The American Immigration Lawyers Association on May 22, 2023. www.aila.org

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

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