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Verification of Employment Eligiblity

Verification of Employment Eligiblity: Changes to E-Verify Requirements for Public and Private Employers

In March of this year, the Florida Legislature passed Senate Bill 664 titled “Verification of Employment Eligibility” which institutes new requirements for employers related to the Department of Homeland Security’s E-Verify program. While the bill takes effect July 1, 2020, the E-Verify requirements for public and private employers do not take effect until July 1, 2021.

Overview of E-Verify Program

E-Verify is an online federal service offered by the US DHS at no-cost to employers which allows employers to verify the employment eligibility of new hires. The service compares information from the employee’s Form I-9 to records available to the DHS and Social Security Administration to confirm that an employee is eligible to work in the United States.

To use E-Verify, employers must enroll in the program online. Employers are required to electronically sign a “Memorandum of Understanding” which outlines the responsibilities employers must agree to before accessing the service. Employers must designate a program administrator who will be responsible for creating new cases in E-Verify and complying with the rules and restrictions set forth in the Memorandum of Understanding.

To verify employment in E-Verify, an employer creates a “case” for a new hire by putting in required information from the new hire’s I-9. The E-Verify program will check the case information with other federal records and determine the status of the employee’s eligibility. If the new hire’s employment is not immediately authorized, there are additional steps which must be taken by the employer to determine the new hire’s employment authorization. Employers who are not familiar with E-Verify or have not registered for or used the program will need to become acquainted with it prior to the law going into effect.

Public Employer E-Verify Requirements

Under Florida’s new proposed law, all public employers, including any state, regional, county, local or municipal governments, public schools, community colleges and state universities, and any public employer contractor or subcontractor, must register and utilize the E-Verify system to verify the work authorization of all newly hired employees. It should be noted that this does not require employers to go back and test the employment authorization of current employees, and indeed, such testing would be a violation of the E-Verify program’s Memorandum of Understanding.

In addition to verifying the authorization of their new hires, public employers and public contractors/subcontractors cannot enter into contracts with other contractors or subcontractors unless the contractors and subcontractors agree to enroll in and utilize E-Verify to determine the work authorization of their new hires. All subcontractors must provide contractors with an affidavit representing that the subcontractor does not contract with, subcontract with, or employ any unauthorized alien. Further, contractors must maintain a copy of this affidavit throughout the period of the contract.

A public employer, public contractor, or public subcontractor which has a good faith belief that an entity or person it is contracting with is not utilizing E-Verify must terminate its contract with the entity. The public employer may not award that entity a public contract for at least a year after the contract termination date. A public employer which develops a good faith belief that a subcontractor is not utilizing E-Verify must alert the prime contractor, at which point the prime contractor must terminate its contract with the subcontractor. Termination of a contract or subcontract based on a good faith belief is not considered a breach of contract. Furthermore, if a contract is terminated due to an entity’s failure to comply with these E-Verify requirements, the entity is responsible to the public employer for the additional costs the public employer incurs as a result.

Private Employer Verification Requirements

As to private employers, the new law does not mandate the use of E-Verify. Rather, it requires verification of an individual’s employment eligibility after the potential new hire accepts the employer’s employment offer. To verify employment eligibility, private employers may choose either to use E-Verify or to request the new hire provide employment eligibility documentation required by USCIS on the Form I-9. Private employers must keep these records for at least three years after the employee is initially hired.

While private employers are not required to verify eligibility of current employees, if a private employer uses “contract employees”, the employer must verify the contract employee’s eligibility when renewing or extending the employee’s contract. It should be noted that the statute does not define these “contract employees” but it refers to those employees who have employment contracts, not independent contractors.

As a method of enforcement, the Florida Department of Law Enforcement, the Florida Attorney General, the state attorney and the statewide prosecutor may require a private employer to provide records the employer relied on to verify employment. Private employers who do not provide this documentation must provide the state with an affidavit asserting the employer will comply with this law regarding employment verification, the employer has terminated its employment of unauthorized aliens and the employer will not knowingly or intentionally employ unauthorized aliens. Any employer who fails to attest to this may have their business licenses with the state revoked.

With offices in Coral Gables, Orlando, Tampa, and Tallahassee, Allen Norton & Blue, P.A. is Florida’s preeminent labor and employment law firm that partners with its clients to build lasting relationships focusing on innovative strategies to prevent and resolve workplace issues efficiently and effectively.