I-9 Compliance is Changing in Florida: Is Your Business Ready?

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Florida employers should note that there has been a change in I-9 compliance in the State of Florida. SB 1718 on Immigration was signed into law by Governor DeSantis on May 10 which mandates that all employers exceeding 25 employees must use the E-Verification system in lieu of I-9s beginning on July 1, 2023.

A separate verification and employment of an “unauthorized alien” will go into effect on July 1, 2024.

SB 1718 contains two sections that impact employers. The first is the Employment of an “Unauthorized Alien” (i.e., what happens if you employ someone who is not eligible for employment in the U.S.). The second is the Employment Verification (i.e., how you verify that an individual is eligible for employment in the U.S.).

The changes to the “unauthorized alien” provisions are effective July 1, 2024. The changes address what happens if an employer employs an individual who is not authorized to work in the U.S. The updates include placing employers on probation for their first violation. The second violation within a twenty-four month period could mandate the employer’s licenses issued by the State of Florida to be suspended. If the hiring of unauthorized aliens is determined to be intentional, then the employer may also be required to repay any economic development incentives they may otherwise have received under under Ch. 288, Florida Statutes.

The most significant change relates to the verification of an employee’s eligibility to work in the State of Florida. Employers with more than twenty-five (25) employees must use the E-Verification system for all new hires beginning on July 1, 2023. If an employer has twenty-four (24) employees or less, then they are permitted to use the old I-9 form.

However, use of the E-Verification creates a rebuttable presumption that the Employer complied with the bill and shifts the burden on the State of Florida to show that the Employer did not comply with their obligations. Conversely, simply using an I-9 is an affirmative defense that the employer is compliant, but requires that employer to show proof in support of its compliance before shifting the burden to the state.

Other requirements of the new bill include that the E-Verification must be completed within three (3) business days from the date of hire of the new employee. Upon receipt of clearance by the system, the employer is required to maintain copies of the E-verification approval page plus the documents submitted on the employee’s behalf for a minimum of three (3) years.

If an employer learns that an employee is ineligible to work in the US, the employer must terminate that employee’s employment regardless of the employee’s date of hire. 

The new bill also affects temp agencies and staffing companies. Employers that qualify as employee leasing companies may want to update their leasing employee’s agreement with clients to pass the burden of E-Verification to the client if they so choose to do so. If the agreement is silent, it is the employee leasing company’s responsibility to complete the E-Verification for an employee.

Following an investigation, if the State of Florida determines an employer failed to use E-Verify when required, they must notify the employer of the determination and give the employer 30 days to cure the noncompliance. If there are three violations within a 24-month period, the mandatory fine is $1,000 per day until the employer provides sufficient proof that the noncompliance is cured. Other penalties for noncompliance include suspension of state-issued licenses.

If an employer is requested to produce copies of documentation of an employee’s eligibility by The Florida Department of Law Enforcement, The Attorney General, the State Attorney (within his or her district), the statewide prosecutor, or the Department of Economic Opportunity (soon to be Department of Commerce), the employer must comply with the request.

There are defenses available; however, these are dependent on the ability to prove compliance.

Clearly, SB 1718 will have a significant impact on Florida employers with more than 25 employees or engaged in agricultural or other industries known to hire immigrant workers.  The penalties of noncompliance are severe, and compliance is required beginning on July 1, 2023. If you have questions about E-verification or I-9 compliance, please contact our labor and employment attorneys for more information.