Business and Legal Insights

Last year, a new law was enacted requiring public and private employers to comply with Florida’s new E-Verify mandates, with Fla. Stat. § 448.095 of the Florida Statutes taking effect on January 1, 2021.  The law makes the use of the web-based E-Verify system, regulated by the Department of Homeland Security, mandatory for all government and public employers. Employers in the State of Florida should be aware of potential required changes to their hiring procedures in 2021.

Which employers are affected?

Pursuant to that statute, every public employer, contractor and subcontractor in the state of Florida is required to enroll in and use the E-Verify system to verify the identity and confirm the eligibility of all new employees.  For purposes of § 448.095, a contractor is a person or entity that has entered into or is attempting to enter into a contract with a public employer to provide labor, supplies, or services to the public employer in exchange for salary, wages, or other remuneration.  A public employer includes any state, regional, county, local or municipal government, public school, community college, or state university. 

Additionally, no public contract can be entered into without an E-Verify certificate.  Any subcontractor working on a public contract must provide the contractor with an affidavit (which must be retained by the contractor during the duration of the contract) stating that the subcontractor does not employ, contract with or subcontract with unauthorized aliens.  Contractors will need to go through this process for all public projects.  Such entities cannot enter into a contract with another party unless the party registers and uses the E-Verify system. 

The new law further requires a party to a public contract to terminate the contract if it has a good-faith belief that another party to the contract is employing an unauthorized person or is not enrolled with and using E-Verify. 

What about private employers?

Private employers are not required to use the E-Verify system unless they have a contract with a public employer or they apply for taxpayer-funded incentives through the state Department of Economic Opportunity.  They must, however, still complete and maintain I-9 Employment Eligibility Verification forms for the duration of employment, and for at least one year from the date the employee is terminated or three years from hire, whichever is later under the federal Immigration Reform and Control Act of 1986.  In addition, under the new Florida law, any private employer who does not use E-Verify must also maintain copies of the documents used to complete the Form I-9 for three years (which is optional under federal law). 

Takeaways

Employers should be prepared to comply with the adoption of these new requirements and uses of the E-Verify system in Florida. Affected employers should make the necessary changes in their hiring processes and carefully scrutinize their internal practices at both the state and federal level to ensure compliance. They can also reach out to their labor and employment counsel for auditing of their record-keeping procedures and best practices for compliance with the E-Verify requirements. The failure to comply with the law can result in suspension or termination of business licenses.