Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On May 10, 2023, Florida Governor Ron DeSantis signed into law a new immigration bill (SB 1718) that will make sweeping changes for private employers with 25 or more employees. Passed by the Florida Senate on April 28, 2023 and by the Florida House of Representatives on May 2, 2023, this bill includes immigration-related provisions that will do the following:
- Require the Florida Department of Economic Opportunity (DEO) to enforce penalties requiring repayment of any economic development incentives or revocation of all applicable licenses, if the DEO finds or is notified that an employer has knowingly employed an individual who is not duly authorized to work;
- As of July 1, 2023, require private employers with 25 or more employees to use the E-Verify system to verify a new employee’s employment eligibility;
- Prohibit counties and municipalities from providing funds to any person, entity or organization that issues identification documents to an individual who does not provide proof of lawful presence in the United States;
- Refuse to recognize driver’s licenses issued by another state to undocumented individuals who were unable to prove lawful presence in the United States when the licenses were issued;
- Require certain hospitals to collect patient immigration status on registration or admission forms;
- Repeal a regulation that allowed undocumented immigrants to be admitted to practice law in Florida; and
- Define Human Smuggler as any person who knowingly and willfully transports an undocumented individual into the state, who knows or who “reasonably should have [known]” the individual’s immigration status. The bill also establishes criminal penalties for individuals who knowingly and willfully transport an undocumented individual into the state.
Under this bill, the Florida 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. Previously, enforcement authority vested with the Florida Department of Law Enforcement (FDLE). The DEO is authorized to impose the following civil penalties:
- Require repayment of any economic development incentive;
- Place the employer on probation for a 1-year period and require that the employer report quarterly to the DEO to demonstrate compliance with the statute;
- If a violation of the statute takes place within 24 months after a previous violation, the DEO will be empowered to revoke or suspend all licenses issued by a licensing agency subject to Chapter 120 of the Florida Statutes.1
- If the subsequent violation involves 1-10 unauthorized workers, the DEO can suspend all applicable licenses held by a private employer for up to 30 days by the respective agencies that issued them.
- If the subsequent violation involves 11-50 unauthorized workers, the DEO can suspend all applicable licenses held by a private employer for up to 60 days by the respective agencies that issued them.
- If the subsequent violation involves more than 50 unauthorized workers, the DEO can revoke applicable licenses held by a private employer by the respective agencies that issued them.
Additionally, the bill requires, starting on July 1, 2023, all private employers with 25 or more employees use the E-Verify system to verify a new employee’s employment eligibility. It is currently not an absolute requirement. The employment verification will need to occur within three business days after the first day the new employee begins working for pay. Those employers required to use E-Verify will be required to certify on their annual tax returns that they are in compliance with this requirement when contributing to or reimbursing the state’s unemployment compensation or reemployment assistance system. If the E-Verify system is unavailable during the three business days after the first day the new employee begins working, the employer will still need to complete an Employment Eligibility Verification form (Form I-9) to verify employment eligibility.
Regardless of this mandate, according to federal regulations, all employers must verify the identity and employment authorization documents by completing and retaining Form I-9 before creating a case in the E-Verify system.
Furthermore, according to this bill, employers must retain a copy of the documentation provided and any official verification generated, for at least three years. The bill does not indicate whether the document retention requirement will be triggered by the date of employment or will begin three years after the date of employment termination. Based on federal regulations, it is likely the bill intends the document retention requirement be triggered by the date of employment. Federal regulations state 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.
Finally, beginning on July 1, 2024, if the DEO determines that an employer failed to use E-Verify three or more times in any 24-month period, it may fine the employer $1,000 per day (from the date that the DEO determines that the employer failed to use the E-Verify System) in addition to suspending all licenses, until the employer provides proof of compliance. This mandate applies only to new employees; it does not apply to past hires or existing employees.
The new law takes effect on July 1, 2023.
1 See Florida Statute 120.52(10) defining “license” as “[a] franchise, permit, certification, registration, charter, or similar form of authorization required by law, but it does not include a license required primarily for revenue purposes when issuance of the license is merely a ministerial act.”