On May 10, 2023, Florida Governor Ron DeSantis signed Senate Bill 1718, which takes effect July 1, 2023, creating new employment mandates affecting Florida’s private businesses. Most important for businesses are the host of penalties for those who violate new E-Verify mandates.
SB1718 requires private Florida employers with 25 or more employees to use E-Verify for all new hires. E-Verify is an internet-based system operated by the United States Department of Homeland Security, which allows participating employers to electronically verify the employment eligibility of new employees. The new law expands Florida law, which already mandates the use of E-Verify by public employers as well as private employers contracting with state and local governments, to include all private employers with at least 25 employees. Employers are required to retain a copy of all documentation provided and any official verification generated by the E-Verify system for at least three years.
Penalties for non-compliance
Beginning July 1, 2024, employers who do not comply with SB1718’s E-Verify requirements are subject to penalties imposed by the Florida Department of Economic Opportunity (DEO). Employers who knowingly employ an unauthorized alien will face significant penalties, including quarterly reporting to the DEO to demonstrate compliance and suspension or revocation of all licenses held by the private employer. Employers who fail to verify the employment eligibility of a new hire face a one-year probation period and will be required to report quarterly to the DEO demonstrating compliance with SB1718.
If the DEO determines that an employer failed to use the E-Verify system three times in any 24-month period, the DEO will impose a fine of $1,000 per day until the employer provides sufficient proof to the DEO that non-compliance is cured. Additionally, failure to comply with the E-Verify requirements may result in the suspension or revocation of all licenses held by the employer until the non-compliance is cured.
Record retention requirements
Beginning July 1, 2023, private employers with 25 or more employees (including part-time employees in permanent positions) in the State of Florida will be required to use the E-Verify system to verify a new employee’s employment eligibility or risk facing penalties. Employers have up to three business days after the first day that the new employee begins working for pay to verify employment eligibility and should begin the verification process as quickly as possible.
Annual certification required
In addition to the retention of copies of documentation provided and any official verification generated by the E-Verify system for at least three years, employers are also required to certify on their first return each calendar year to the tax service provider that they are in compliance with SB1718 when making contributions to or reimbursing the state’s unemployment compensation or reemployment assistance system. Employers that voluntarily use the E-Verify system may make such a certification on their first return each calendar year in order to document such use.
Even if the E-Verify system is unavailable for any reason during the three business days after the new hire begins working for pay, employers are not relieved of the verification requirement. Employers who cannot access the system to verify a new employee’s employment eligibility must still use a Form I-9 to verify employment eligibility and must document the unavailability of the E-Verify system.
Acceptable methods for documenting the system’s unavailability include retaining a screenshot from each day which shows the employer’s lack of access to the system, a public announcement that the system is not available, or any other communication or notice regarding the unavailability of the E-Verify system. The failure to document these efforts and the unavailability of the system may result in penalties to the employer.
As of July 1, 2023, employers subject to the mandate should familiarize themselves with the new law, its requirements and penalties.