Providing Developments & Insight on Trending Topics in Employment Law

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Providing Developments &amp; Insight on Trending Topics in Employment Law

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Like many states before it, the State of Florida has enacted new requirements for mandatory use of E-Verify and expanded I-9 documentation requirements for private and public employers. The new law, which went into effect Jan. 1, 2021, requires all Florida employers who do not use the U.S. Department of Homeland Security’s E-Verify system to retain copies of documents new hires provide to verify their identity and work authorization during the Form I-9 employee onboarding process. The law also requires certain employers to use the U.S. Department of Homeland Security’s E-Verify system to confirm employment authorization.

The federal law known as the <a href="https://www.govinfo.gov/content/pkg/USCODE-2011-title8/pdf/USCODE-2011-title8-chap12-subchapII-partVIII-sec1324a.pdf">Immigration Reform and Control Act</a> (IRCA) requires employers to confirm employees are eligible to work in the United States by completing Forms I-9 and reviewing documentation of employees’ identity and employment eligibility. Federal I-9 regulations provide that employers can generally choose whether to retain copies of the supporting documents, with some exceptions for employers that use the voluntary federal E-Verify service.

As of Jan. 1, 2021, <a href="http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&amp;URL=0400-0499/0448/0448.html">Florida’s new statute</a> requires all Florida employers who do not use E-Verify to retain copies of the identity and employment eligibility documents provided by all new hires during the I-9 process. These documents must be retained for at least three years after the initial date of employment with the corresponding Form I-9 or with the employee’s other records.

The law does not apply to an employer’s existing W-2 employees employed prior to Jan. 1, 2021, but contains a peculiar exception for “contract employees.” As written, the law requires private employers to re-verify the employment eligibility of contract employees when contracts are renewed or extended by using E-Verify or the I-9 document review process.

Employers who comply with the new law benefit from a presumption that they have not knowingly employed unauthorized workers, as well as immunity from criminal and civil liability under Florida law.

Florida employers must provide copies of any documentation relied upon for the verification of a person’s employment eligibility if requested by the Florida Department of Law Enforcement, Attorney General, state attorney, or statewide prosecutor. Employers who fail to comply with this new law risk suspension of business licenses. If discovered in violation, an employer will have 30 days to provide an affidavit to the Florida Department of Economic Opportunity stating that it has terminated all unauthorized employees in Florida, it will not intentionally or knowingly employ unauthorized workers in Florida, and it will comply with Florida’s verification requirements. If the employer does not provide the required affidavit, its business licenses will be suspended until it comes into compliance. If the employer violates this affidavit requirement three times within 36 months, it will lose its business licenses.

The new Florida law also requires all public employers, state government contractors, and their subcontractors to use the federal E-Verify service to verify employment eligibility as of Jan. 1, 2021. Public employers and contractors must terminate applicable contracts if they have a good faith belief that the other party is knowingly employing unauthorized employees.

<u>Bottom Line:</u> Clearly, this new law imposes employer obligations in excess of federal I-9 regulations and requirements and, as a result, will be subject to legal challenges. For now, all Florida employers who do not use E-Verify should update their I-9 processes to include copying identity and employment eligibility documents provided by new hires and retaining them for at least three years. While this is not required by federal law, it is permitted. In addition, public employers, state government contractors, and subcontractors should enroll in and begin using E-Verify to confirm the employment authorization of all new hires.

On the other hand, Florida employers should exercise caution before re-verifying the employment eligibility of “contract employees” through E-Verify or I-9 document collection when contracts are renewed or extended until apparent conflicts with the federal E-Verify and I-9 rules are resolved.

Florida’s New Form I-9 & E-Verify Requirements