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Florida Law Imposes Additional E-Verify Requirements for Private Employers

Sara Barli Herald, Diana C. Mendez & Joseph A. Beguiristain

Further Hiring Requirements for Private Employers

A. Overview of Senate Bill 1718 (“SB1718”)

Earlier this year, the State of Florida enacted a law that continues to have significant implications for employers across the Sunshine State. On May 10, 2023, Governor Ron DeSantis signed into law SB1718, now Section 448.095, Florida Statutes (“Section 448.095”), which requires private employers with 25 or more employees to use E-Verify for new hires—a measure aimed at combating illegal immigration into the state. This requirement became effective as of July 1, 2023. 

B. Law Prior to SB1718

Since 2021, Florida law required every public agency, contractor, and subcontractor to use the E-Verify system to authenticate the work status of recent hires. Under such law, a contract between a public agency and a contractor and/or subcontractor must contain language that any new hires will be validated through E-Verify. This requirement applies to all contractors or subcontractors, regardless of size and employee headcount, under contract with a public agency. Notably, if a contractor enters into a contract with a subcontractor, the subcontractor must provide the contractor with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien.

C. SB1718 Broadens Existing Law to Include Private Employers

The passing of SB1718 does not change the above requirements. Instead, the new law broadens the mandate to include all private employers with at least 25 employees, regardless of whether such private employers are under contract with a public agency. This requirement for private employers only applies to employees hired after July 1, 2023. Independent contractors are not subject to the requirements of Section 448.095.

Private employers have expressed confusion regarding the boundaries of the new law. It was unclear whether all 25-plus employees had to be based in Florida and also, whether out-of-state employers with remote workers based in Florida had to comply with the requirements of Section 448.095. 

To clarify such confusion, the Florida Department of Revenue recently issued guidance on the issue, opining that according to Section 448.095, private employers with 25 or more employees performing services in Florida must certify the eligibility of their employees performing services in Florida (emphasis added). This development makes it clear—the E-Verify mandate applies to employees performing services in Florida, whereas such mandate does not apply to employees not performing services in the state.

Overview of the E-Verify System

Operated by the United States Department of Homeland Security, E-Verify is an online system that allows employers to verify the employment eligibility of new employees by comparing their information with government records. Mainly, the E-Verify system cross-references the social security number provided by the employee with the records of the Social Security Administration. 
Despite Section 448.095, existing employer I-9 requirements remain in place. Employees hired before July 1, 2023 remain subject to all I-9 mandates, however, their information does not need to be entered into the E-Verify system. 

How to Register in E-Verify

Florida private employers with over 25 or more employees must utilize E-Verify to authenticate all new hires. Employers can enroll online and find additional information on the E-Verify website.  

Enforcement of Section 448.095 

Enforcement for covered employers began on July 1, 2023. If the Florida Department of Economic Opportunity (“DEO”) determines an employer has failed to comply with the E-Verify requirements of Section 448.095, DEO will send such employer a notification and the employer will have 30 days to correct the noncompliance. If three violations occur in a 24-month period, a fine of $1,000 per day may be imposed. Also, other civil and criminal penalties may be imposed on a case-by-case basis, including suspension or revocation of state licenses, permits, registrations, among others.  

Implications on Florida’s Business Community

The requirements of Section 448.095 increase the administrative responsibilities on employers. The expansion of the new law to include private employers with 25 or more employees requires thousands of business to adjust their customary procedures for onboarding new hires. With steep penalties for non-compliance, employers and their advisors must educate internal stakeholders of the requirements of Section 448.095. Those businesses contracting with government must be especially vigilant as there is no minimum number of employees to require the use of E-Verify.

Bilzin Sumberg will continue to monitor developments to Section 448.095. Please feel free to contact us with any questions.  

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