Analyzing the Impact of SB 1718: Key Provisions Affecting Florida Employers with Immigrant Workforces

SB 1718, amending, among other Chapters, Chapter 448, Florida Statutes (labor regulations), was recently signed into law by Governor DeSantis and introduces several amendments to the state-regulated immigration laws that impact Florida employers. This blog post provides an analysis of the key provisions within the bill that are likely to affect any employer who employs an immigrant workforce. The amendments will specifically affect (i) the penalties for hiring unauthorized aliens (effective July 1, 2024) and (ii) employment verification and reporting requirements (already effective, as explained below). Careful attention to these changes is critical to ensuring compliance with the shifting legal landscape.

Key Provisions of SB 1718

Change of Penalties for Hiring Unauthorized Aliens

Under Section 448.09, Florida Statutes, it is currently unlawful for an employer to “knowingly employ, hire, recruit, or refer an alien for private or public employment within the state if the alien is not duly authorized to work under the immigration laws of the United States, the Attorney General, or the Secretary of the Department of Homeland Security.” That restriction is unchanged by SB 1718.

However, the penalties for noncompliance have been amended, effective July 1, 2024. First, if an employer is noncompliant then the Department of Economic Opportunity (“DEO”) “must… require the repayment of any economic development incentive received pursuant to Section 288.061(6), Florida Statutes.” Second, a violation results in probation for the employer for a 1-year period, during which the employer must report quarterly to the DEO to demonstrate compliance. If a violation occurs within 24 months of a previous violation, it can lead to the suspension or revocation of all occupational licenses issued by the relevant licensing agencies (e.g. contracting licenses, real estate licenses, etc.). The specific duration of the suspension depends on the number of unauthorized aliens involved:

• One to 10 unauthorized aliens, suspension of all applicable licenses held by a private employer for up to 30 days by the respective agencies that issued them.
• Eleven to 50 unauthorized aliens, suspension of all applicable licenses held by a private employer for up to 60 days by the respective agencies that issued them.
• More than 50 unauthorized aliens, revocation of all applicable licenses held by a private employer by the respective agencies that issued them.

Stricter Employment Verification Requirements and Noncompliance Penalties

Section 448.095, Florida Statutes, currently requires employers to verify a person’s employment eligibility using the “E-Verify” system after making an offer of employment. However, SB 1718 tightens that requirement and adds additional layers of compliance. Additionally, it should be noted that SB 1718 is already in effect as the bill states it is “effective upon becoming a law” and SB 1718 has become law. SB 1718 requires:

1. Starting July 1, 2023, private employers with 25 or more employees are mandated to utilize the E-Verify system to verify the work eligibility of new employees within 3 business days from their first day of work.
   1. To be sure, an independent contractor “hired to perform a specified portion of labor or services” is not an employee.
   2. If the E-Verify system is unavailable for three business days, employers may use the I-9 form as an alternative, and must maintain documentation of the system’s unavailability, including screenshots, public announcements, or any other communication regarding the system’s downtime, for a minimum of three years.
2. Each employer required to use the E-Verify system must certify on its first return each calendar year to the tax service provider that it is in compliance with this section when making contributions to or reimbursing the state’s unemployment compensation or reemployment assistance system.
   1. An employer that voluntarily uses the E-Verify system may also make such a certification on its first return each calendar year in order to document such use.
3. If the employer discovers that an employee is ineligible to work in the United States or no longer eligible to work in the United States, the employer must cease employing the unauthorized worker.
4. Certain entities will now have the authority to request review of an employer’s employment verification records. These include the Florida Department of Law Enforcement, the Florida Attorney General, the state attorney in the relevant circuit, the statewide prosecutor, and the DEO. However, it is crucial to note that these entities must rely on the federal government’s determination of an employee’s eligibility for authorized employment as generated by the E-Verify system, and cannot make their own independent determinations.
5. In the employer’s defense, employers who utilize the E-Verify system, or the I-9 form when E-Verify is unavailable, and who otherwise use the same documentation required by the I-9 form, are deemed to have established a rebuttable presumption of complying with the law. This presumption assumes that the employer has met the necessary legal obligations unless proven otherwise.

Beginning on July 1, 2024, the DEO will enforce compliance with employment verification requirements. For failure to use the E-Verify system, the DEO will issue a notice allowing the employer a 30-day cure period to rectify the noncompliance. If an employer fails to use the E-Verify system three times within a 24-month period, the DEO is authorized to impose a fine of $1,000 per day until proof of compliance is provided. Furthermore, noncompliance with the employment verification requirements may trigger suspension of all licenses issued until the noncompliance is cured.

Conclusion

The passing of SB 1718 brings significant changes to employers of immigrant workers in Florida given its changes to the penalties for employment of unauthorized aliens and stricter compliance requirements related to E-Verify employment verification. It is imperative for employers to familiarize themselves with these amendments, ensure compliance, and take necessary steps to adapt their operations accordingly.