FAQs: Florida Requires Certain Employers to Use Federal E-Verify System to Confirm Employees are Legally Eligible to Work

Beginning on July 1, 2023, private employers in Florida with more than 25 employees will be required to use the federal E-Verify system for all new hires in order to verify that newly hired employees are legally authorized to work in the U.S. The 25-employee threshold refers to the total number of company employees, not just those employees who work in Florida. Covered Florida employers must enroll in E-Verify using the E-Verify.gov website and follow the registration process. E-Verify requires the employer to transcribe a new hire’s information from his or her I-9 into E-Verify, which will confirm whether the new hire is authorized to work in the U.S. Employers who do not comply with this new law will be subjected to stiff penalties for noncompliance, including costly daily fines and suspension and/or revocation of state licenses. The penalties for noncompliance will take effect July 1, 2024.

Q:What is E-Verify?

A: E-Verify is an online employment verification system operated by the federal government. It serves as an additional method, not a replacement, for employment verification. Employers who use E-Verify input the information from the Form I-9 into the system, which then verifies the accuracy of the provided information and the employee's authorization to work in the United States. While federal law does not mandate E-Verify usage, some states, including Florida, have implemented their own requirements.

Q: What are the Requirements for Employers?

A: Effective July 1, 2023, private employers with more than 25 total employees must use E-Verify to verify the work authorization of newly hired employees. The law amends the existing Florida Statute 448.095 to enforce this requirement. The law prohibits employers from hiring individuals who are not authorized to work in the U.S. By utilizing the E-Verify system, employers establish a rebuttable presumption of compliance with employment verification laws.

Q: How are "Employee" and Exclusions Defined?

A: The law defines an "employee" as an individual holding a permanent position under an employer's control or direction regarding the material details of the work. However, independent contractors and individuals hired for casual labor exclusively performed in private residences (e.g., house cleaning and handyman work) are excluded from this definition.

Q: What if E-Verify is Unavailable?

A: If the E-Verify system is inaccessible for three business days after an employee begins working, employers are permitted to use Form I-9 to verify employment eligibility instead. Employers must document the unavailability of E-Verify by retaining daily screenshots that demonstrate their inability to access the system. The employer is required to retain this documentation, along with copies of the employee's provided documents and the results of successful E-Verify searches, for a minimum of three years.

Q: What are the Penalties for Noncompliance?

A: The Florida Department of Law Enforcement, the Attorney General, the State Attorney, and the Florida Department of Economic Opportunity (DEO) have enforcement authority under the law. Starting from July 1, 2024, the DEO may impose penalties for noncompliance. Upon determining noncompliance, the DEO will issue a notice providing the employer with 30 days to rectify the situation. If an employer fails to use E-Verify three times within a 24-month period, they may face a fine of $1,000 per day and have their state licenses revoked until compliance is achieved.

Q: What about Enforcement Actions Based on Unauthorized Employment?

A: The DEO has the authority to determine whether an employer knowingly employed unauthorized individuals without verifying their employment eligibility. If such a violation is found, the employer must repay any economic development incentives received and will be placed on a one-year probation period. During probation, the employer must provide quarterly reports to the DEO to demonstrate compliance. Subsequent violations within 24 months may result in the suspension or revocation of all state licenses, depending on the number of unauthorized employees employed.

Takeaways

Employers in Florida must closely familiarize themselves with the requirements of the new law to ensure compliance with the E-Verify requirements. Employers must utilize E-Verify, maintain proper documentation, and adhere to the provisions outlined above.