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PCS for HB 1265 (2020) — An act relating to the verification of employment eligibility

Summary

PCS for HB 1265 (2020), a bill to be entitled an act relating to the verification of employment eligibility, from the Commerce Committee. Section 1 adds a subsection to section 288.061, Florida Statutes, on the economic development incentive application process, requiring an awardee to register with and use the E-Verify system, with repayment of incentive money to the department within thirty days of a final determination of noncompliance. Section 2 creates section 448.095, Florida Statutes, on employment eligibility, with definitions and requirements for public and private employers, contractors and subcontractors. It provides for suspension or revocation of licenses, and Section 3 states that the act takes effect July 1, 2020.

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“PCS for HB 1265 (2020) — An act relating to the verification of employment eligibility.” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2020-2994-commerce-committee-proposed-committee-bills-pcbs-fn-pcs-for-7a3a3019cb/, SHA-256 0da2817735b9f10836472872c03b2f233808818f0f1ad93a7710d5993d2e1f3e.

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           PCS for HB 1265                                                                                      2020



    1                                         A bill to be entitled
    2              An act relating to the verification of employment
    3              eligibility; amending s. 287.061, F.S.; requiring that
    4              certain information be included in the economic
    5              development incentive application process; creating s.
    6              448.095, F.S.; providing definitions; requiring public
    7              employers, contractors, and subcontractors to register
    8              with and use the E-Verify system; prohibiting such
    9              entities from entering into a contract unless each
10                 party to the contract registers with and uses the E-
11                 Verify system; requiring a subcontractor to provide a
12                 contractor with a certain affidavit; requiring a
13                 contractor to maintain a copy of such affidavit;
14                 authorizing the termination of a contract under
15                 certain conditions; providing that such termination is
16                 not a breach of contract; authorizing a challenge to
17                 such termination; providing certain liability if a
18                 contract is terminated; requiring private employers to
19                 verify the employment eligibility of newly hired
20                 employees beginning on a specified date; providing an
21                 exception; providing acceptable methods for verifying
22                 employment eligibility; requiring a private employer
23                 to maintain certain documentation for a specified
24                 time; providing specified immunity and nonliability
25                 for private employers; creating a rebuttable

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        PCS for HB 1265                                                                                      2020



26              presumption for private employers; requiring private
27              employers to provide copies of certain employment
28              documents, upon request, to specified persons or
29              entities for certain purposes; providing for the
30              suspension or revocation of certain licenses under
31              certain circumstances; providing construction;
32              providing an effective date.
33
34      Be It Enacted by the Legislature of the State of Florida:
35
36              Section 1.         Subsection (7) is added to section 288.061,
37      Florida Statutes, to read:
38              288.061       Economic development incentive application
39      process.—
40              (7)     Beginning July 1, 2020, the executive director may not
41      approve an economic development incentive application unless the
42      application includes proof to the department that the applicant
43      is registered with and uses the E-Verify system, as defined in
44      s. 448.095, to verify the work authorization status of all newly
45      hired employees. If the department determines that the awardee
46      is not complying with this subsection, the department must
47      notify the awardee by certified mail of the department's
48      determination of noncompliance and the awardee's right to appeal
49      the determination. On a final determination of noncompliance,
50      the awardee must repay all monies received as an economic

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        PCS for HB 1265                                                                                      2020



51      development incentive to the department within thirty days of
52      the final determination.
53              Section 2.         Section 448.095, Florida Statutes, is created
54      to read:
55              448.095       Employment eligibility.—
56              (1)     DEFINITIONS.—As used in this section, the term:
57              (a)     "Agency" means an agency, a department, a board, or a
58      commission of this state or a county or municipality which
59      issues a license to operate a business in this state.
60              (b)     "Contractor" means a person or entity that has entered
61      or is attempting to enter into a contract with a public employer
62      to provide labor, supplies, or services to such employer in
63      exchange for salary, wages, or other remuneration.
64              (c)     "Department" means the Department of Economic
65      Opportunity.
66              (d)     "Employee" means a person filling an authorized and
67      established position who performs labor or services for a public
68      or private employer in exchange for salary, wages, or other
69      remuneration.
70              (e)     "E-Verify system" means an Internet-based system
71      operated by the United States Department of Homeland Security
72      that allows participating employers to electronically verify the
73      employment eligibility of newly hired employees.
74              (f)     "Legal alien" means a person who is or was lawfully
75      present or permanently residing legally in the United States and

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         PCS for HB 1265                                                                                      2020



76       allowed to work at the time of employment and remains so
77       throughout the duration of that employment.
78               (g)      "License" means a franchise, a permit, a certificate,
79       an approval, a registration, a charter, or any similar form of
80       authorization required by state law and issued by an agency for
81       the purpose of operating a business in this state. The term
82       includes, but is not limited to:
83               1.      An article of incorporation.
84               2.      A certificate of partnership, a partnership
85       registration, or an article of organization.
86               3.      A grant of authority issued pursuant to state or
87       federal law.
88               4.      A transaction privilege tax license.
89               (h)      "Private employer" means a person or entity that
90       transacts business in this state, that has a license issued by
91       an agency in this state, and that employs persons to perform
92       labor or services in exchange for salary, wages, or other
93       remuneration. The term does not include:
94               1.      A public employer;
95               2.      The occupant or owner of a private residence who hires:
96               a.      Casual labor, as defined in s. 443.036, to be performed
97       entirely within the private residence; or
98               b.      A licensed independent contractor, as defined in
99       federal laws or regulations, to perform a specified portion of
100      labor or services; or

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         PCS for HB 1265                                                                                      2020



101              3.      An employee leasing company licensed under part XI of
102      chapter 468 that enters into a written agreement or
103      understanding with a client company which places the primary
104      obligation for compliance with this section upon the client
105      company. In the absence of a written agreement or understanding,
106      the employee leasing company is responsible for compliance with
107      this section. Such employee leasing company shall, at all times,
108      remain an employer as otherwise defined in federal laws or
109      regulations.
110              (i)      "Public employer" means an entity within state,
111      regional, county, local, or municipal government, whether
112      executive, judicial, or legislative, or any public school,
113      community college, or state university that employs persons who
114      perform labor or services for that employer in exchange for
115      salary, wages, or other remuneration or that enters or attempts
116      to enter into a contract with a contractor.
117              (j)      "Subcontractor" means a person or entity that provides
118      labor, supplies, or services to or for a contractor or another
119      subcontractor in exchange for salary, wages, or other
120      remuneration.
121              (k)      "Unauthorized alien" means a person who is not
122      authorized under federal law to be employed in the United
123      States, as described in 8 U.S.C. s. 1324a(h)(3). The term shall
124      be interpreted consistently with that section and any applicable
125      federal rules or regulations.

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         PCS for HB 1265                                                                                      2020



126              (2)      PUBLIC EMPLOYERS, CONTRACTORS, AND SUBCONTRACTORS.—
127              (a)      Beginning January 1, 2021, every public employer,
128      contractor, and subcontractor shall register with and use the E-
129      Verify system to verify the work authorization status of all
130      newly hired employees. A public employer, contractor, or
131      subcontractor may not enter into a contract unless each party to
132      the contract registers with and uses the E-Verify system.
133              (b)1.       If a contractor enters into a contract with a
134      subcontractor, the subcontractor must provide the contractor
135      with an affidavit stating that the subcontractor does not
136      employ, contract with, or subcontract with an unauthorized
137      alien.
138              2.      The contractor shall maintain a copy of such affidavit
139      for the duration of the contract.
140              (c)1.       A public employer, contractor, or subcontractor who
141      has a good faith belief that a person or entity with which it is
142      contracting has knowingly violated s. 448.09(1) shall terminate
143      the contract with the person or entity.
144              2.      A public employer that has a good faith belief that a
145      subcontractor knowingly violated this subsection, but the
146      contractor otherwise complied with this subsection, shall
147      promptly notify the contractor and order the contractor to
148      immediately terminate the contract with the subcontractor.
149              3.      A contract terminated under subparagraph 1. or
150      subparagraph 2. is not a breach of contract and may not be

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         PCS for HB 1265                                                                                      2020



151      considered as such.
152              (d)     A public employer, contractor, or subcontractor may
153      file an action with a circuit or county court to challenge a
154      termination under paragraph (c) no later than 20 calendar days
155      after the date on which the contract was terminated.
156              (e)     If a public employer terminates a contract with a
157      contractor under paragraph (c), the contractor may not be
158      awarded a public contract for at least 1 year after the date on
159      which the contract was terminated.
160              (f)     A contractor is liable for any additional costs
161      incurred by the public employer as a result of the termination
162      of the contract.
163              (3)     PRIVATE EMPLOYERS.—
164              (a)     Beginning January 1, 2021, a private employer shall,
165      after making an offer of employment which has been accepted by a
166      person, verify such person's employment eligibility. A private
167      employer is not required to verify the employment eligibility of
168      a continuing employee hired before January 1, 2021. However, if
169      a person is a contract employee retained by a private employer,
170      the private employer must verify the employee's employment
171      eligibility upon the renewal or extension of his or her
172      contract.
173              (b)     A private employer shall verify a person's employment
174      eligibility by:
175              1.      Using the E-Verify system; or

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         PCS for HB 1265                                                                                      2020



176              2.      Requiring the person to provide the same documentation
177      that is required by the United States Citizenship and
178      Immigration Services on its Employment Eligibility Verification
179      form (Form I-9).
180
181      The private employer must retain a copy of the documentation
182      provided under this subparagraph for at least 3 years after the
183      person's initial date of employment.
184              (c)     A private employer that complies with this subsection
185      may not be held civilly or criminally liable under state law for
186      hiring, continuing to employ, or refusing to hire an
187      unauthorized alien if the information obtained under paragraph
188      (b) indicates that the person's work authorization status was
189      not that of an unauthorized alien.
190              (d)     For purposes of this subsection, compliance with
191      paragraph (b) creates a rebuttable presumption that a private
192      employer did not knowingly employ an unauthorized alien in
193      violation of s. 448.09(1).
194              (e)     For the purpose of enforcement of this section, the
195      following persons or entities may request, and the private
196      employer must provide copies of, any documents relied upon by
197      the private employer for the verification of a person's
198      employment eligibility, including, but not limited to, any
199      document required under paragraph (b):
200              1.      The Department of Law Enforcement.

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         PCS for HB 1265                                                                                      2020



201              2.      The Attorney General.
202              3.      The state attorney.
203              4.      The statewide prosecutor.
204
205      A person or entity that makes a request under this paragraph
206      must rely upon the federal government to verify a person’s
207      employment eligibility, and may not independently make a final
208      determination as to whether a person is an unauthorized alien.
209              (f)     If a private employer does not comply with paragraph
210      (b), the department must require the private employer to provide
211      an affidavit to the department stating that the private employer
212      will comply with paragraph (b) and the private employer has
213      terminated the employment of all unauthorized aliens in this
214      state and that the employer will not intentionally or knowingly
215      employ an unauthorized alien in this state. If the private
216      employer does not provide the required affidavit within 30 days,
217      the department must order the appropriate agency to suspend all
218      applicable licenses held by the private employer until the
219      private employer provides the department with the required
220      affidavit. For the purposes of this paragraph, the licenses that
221      are subject to suspension under this paragraph are all licenses
222      that are held by the employer specific to the business location
223      where the unauthorized alien performed work. If the employer
224      does not hold a license specific to the business location where
225      the unauthorized alien performed work, but a license is

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         PCS for HB 1265                                                                                      2020



226      necessary to operate the employer's business in general, the
227      licenses that are subject to suspension under this subdivision
228      are all licenses that are held by the employer at the employer's
229      primary place of business.
230              (g)     For any private employer found to have violated
231      paragraph (f) three times within any 36 month period, the
232      department shall order the appropriate agencies to permanently
233      revoke all licenses that are held by the private employer
234      specific to the business location where the unauthorized alien
235      performed work. If the private employer does not hold a license
236      specific to the business location where the unauthorized alien
237      performed work, but a license is necessary to operate the
238      private employer's business in general, the department shall
239      order the appropriate agencies to permanently revoke all
240      licenses that are held by the private employer at the private
241      employer's primary place of business.
242              (5)     CONSTRUCTION.—This section shall be enforced without
243      regard to race, color, or national origin and shall be construed
244      in a manner so as to be fully consistent with any applicable
245      federal laws or regulations.
246              Section 3.         This act shall take effect July 1, 2020.




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