The centerpiece of the law is a provision requiring private sector employers with more than 25 employees to use the federal E-Verify system to vet the employment eligibility of new employees.

Florida Governor Ron DeSantis signed into law Senate Bill 1718 on May 10, 2023. The new law is touted as a comprehensive immigration package aimed to stop illegal immigration.

The centerpiece of the law is a provision requiring private sector employers with more than 25 employees to use the federal E-Verify system to vet the employment eligibility of new employees. This requirement goes into effect on July 1, 2023.

In addition, the new law states that the Florida Department of Economic Opportunity (DEO) may impose penalties on a person if they “knowingly employ, hire, recruit, or refer for private or public employment, an individual unauthorized to work.” Further, the DEO is authorized to impose civil penalties, including requiring the “repayment” of any economic development incentive, placing the employer on one year of probation, and requiring that the employer report quarterly to the department to demonstrate compliance with the requirements of the statute. If a violation of the statute takes place within 24 months after a previous violation, the department will be authorized to revoke or suspend all licenses issued by a licensing agency.

The department can take the following actions for subsequent violations involving:

• One to 10 unauthorized workers: The suspension of all applicable licenses held by a private employer for up to 30 days by the respective licensing agencies.
• Eleven to 50 unauthorized workers: The suspension of all applicable licenses held by a private employer for up to 60 days by agencies that issued them.
• More than 50 unauthorized workers: Revoke all applicable licenses held by a private employer by the respective agencies that issued them.

Federal E-Verify regulations already require all employers to verify the identity and employment authorization documents of employees by completing and retaining Form I-9 before creating a case in the E-Verify system.

Under the new Florida immigration law, employers must retain a copy of the documentation provided and any official verification generated for at least three years. It appears for now that the new law, based on present federal regulations, intends the document retention requirement to be triggered by the date of employment. Federal rules already require that an employer must retain a Form I-9 for each person hired for “three years after the date of hire, or one year after the date employment ends, whichever is later.”

What Does the E-Verify Provision Require?

E-Verify is an internet-based system that compares information from Form I-9, Employment Eligibility Verification, to records available to the U.S. Department of Homeland Security and the Social Security Administration to confirm that individuals hired are authorized to work in the United States. All Florida public sector employers are required to use E-Verify, and now private sector employers with more than 25 employees in Florida also must use the service.

Significantly, the mandatory E-Verify provision will apply only to new hires made on or after July 1, 2023. Employers are not required to use E-Verify with respect to employees hired before that date. Also, the law does not cover independent contractors.

If an employer is unable to verify a newly hired employee because the E-Verify system is unavailable for more than three business days after the new hire begins work, the employer will be required to (i) use Employment Eligibility Verification form (Form I-9) to verify employment eligibility, and (ii) retain a screenshot or other proof of the system’s unavailability for each day the employer was unable to access the system.

Employers required to use the E-Verify system will also be required to certify their compliance with the system’s requirement on their first return each calendar year to the state’s tax service provider. Employers would have to keep a copy of the new employee’s E-Verify documentation for at least three years.

Should the DEO determine that an employer has failed to use the E-Verify system when required to do so, the department will notify the employer of the noncompliance. The notified employer will have 30 days to cure the noncompliance. If the DEO determines that an employer failed to use the E-Verify system three times in any 24-month period, it may impose a fine of $1,000 per day until the employer provides satisfactory evidence that it has rectified the noncompliance.

Employee-leasing companies that specifically place the primary obligation for E-Verify compliance upon client companies—in “a written agreement or memorandum of understanding”—will “not [be] required to verify employment eligibility of any new employees of the client compan[ies].”

What Effect Will This Have on Florida Employers?

This is a significant new law that imposes duties and responsibilities on numerous companies doing business in Florida. In particular, the law is likely to have substantial effect on some of Florida’s most prominent industries―construction, hospitality and agriculture, for example.

Since the compliance date is less than two months away (July 1, 2023), covered employers should immediately begin preparing to use E-Verify.

For More Information

If you have any questions about this Alert, please contact Hector Chichoni, Kevin Vance, any of the attorneys in our Immigration Law Group, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.