Florida's New Law Requires E-Verify for Private Employers

On May 10, 2023, Florida Governor Ron DeSantis signed SB 1718 into law, which requires private employers with at least 25 employees to use E-Verify, a digital immigration verification tool, during their onboarding process. This law will take effect on July 1, 2023.

The law will increase penalties for noncompliance and for employers who knowingly hire undocumented workers. Employers who use E-Verify in good faith will be presumed not to have knowingly hired unauthorized workers, whether use is mandatory or voluntary.

E-Verify is an online tool operated by the U.S. Department of Homeland Security that allows employers who have completed Form I-9 to electronically verify employment eligibility for their new hires. Employers, with over 25 employees, must use the system to verify all newly hired employees, regardless of citizenship, and may not selectively use E-Verify.

Currently, E-Verify is mandatory in Florida for public employers and private employers contracting with state and local governments or receiving state incentive dollars. The new law expands that requirement to all private employers with at least 25 employees.

Here are five key takeaways for employers regarding the new law:

1. Compliance Dates

   Private employers with 25 or more employees must utilize the E-Verify system in addition to completing Form I-9 for new employees hired on or after July 1, 2023.

2. Record Retention Requirements

   Employers must retain a copy of the documentation, as well as any official verification generated, for at least three years.

3. Compliance Presumed

   Employers who use the E-Verify system establish a rebuttable presumption that they have not knowingly employed an unauthorized worker. If the E-Verify system is down for three days, and you cannot timely complete the process for a new hire, you can still benefit from the rebuttable presumption by completing Form I-9 and taking a screenshot each day, documenting that the system is unavailable, or retaining any official notice or communication you received about the system being down.

4. Annual Certification Required

   Each employer required to use the E-Verify system must certify compliance on its first return when making contributions to or reimbursing the state's unemployment compensation or reemployment assistance system.

5. Penalties for Noncompliance

   Penalties will go into effect on July 1, 2024. Businesses have 30 days to cure noncompliance after receiving notice from the Department of Economic Opportunity (DEO), and the new law requires the DEO to notify a business prior to issuing penalties for violations. If the DEO determines that an employer failed to use the E-Verify system as required three times in any 24-month period, the department must impose a fine of $1,000 per day until the employer provides sufficient proof that the noncompliance is cured. An employer's first violation results in a one-year probationary period with reporting requirements to put a business on a path to compliance prior to any licenses being revoked.

Small businesses with fewer than 25 employees can continue to use the Form I-9 to verify employment eligibility or choose to use E-Verify, which comes with heightened immunity protections. Employers that operate in multiple jurisdictions will need to track this potential trend in legal requirements.

In conclusion, the new law requires private employers with at least 25 employees to use E-Verify in addition to completing Form I-9 for new hires. Employers must retain a copy of the documentation and any official verification generated for at least three years. Employers who use the E-Verify system in good faith will be presumed not to have knowingly hired unauthorized workers. Penalties for noncompliance will go into effect on July 1, 2024.