Florida Mandates Use of E-Verify for Private Employers with 25 or More Employees

The number of states requiring private employers to use E-Verify — the federal web-based system used to verify employment eligibility — is expanding, as Florida’s governor signed Senate Bill 1718 on May 10, 2023. The legislation includes provisions impacting private employers with 25 or more employees. Some provisions of the expanded law go into effect July 1, 2023, while other provisions have different effective dates.

Currently under Florida Labor Statute XXXI, the state requires private employers to verify an individual’s eligibility for employment after an offer has been accepted, using either the E-Verify system or by requiring the employer to retain copies of the same documents presented to complete Form I-9. That statute, which took effect Jan. 1, 2021, also requires the use of the E-Verify system for all public employers, contractors, and subcontractors.

What Is E-Verify?

E-Verify is a federal government program available since the mid-1990s to employers to verify employment eligibility of newly hired employees. The system is designed to help mitigate the risk of hiring and employing individuals who are not authorized to work in the United States. Certain federal contractors are required to use the system, and since the 1990s and mostly in the past decade, 23 states and localities have adopted legislation that mandates the use of E-Verify for certain employers.

E-Verify is available, however, for any employer to utilize voluntarily.

The E-Verify system compares information from an employee’s completed Form I-9 with records available to the U.S. Department of Homeland Security and the Social Security Administration. Form I-9 — the federal form used to verify the identity and employment authorization of individuals hired to work in the U.S. — includes multiple sections. Employees must complete every field in Section I (bullets below), with the exception of their telephone number, email-address, and social security number.

• Name
• Address
• Date of birth

However, if the employer participates in E-Verify, employees must provide their social security number.

E-Verify is designed to provide real-time results that enable employers to know if an individual is eligible for employment in the United States. If there is information that does not match, the employer and employee are provided with details on how to resolve the situation.

States Requiring All or Most Employers To Use E-Verify

The states that require all or most employers in their state to use E-Verify are Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Utah. Florida joins this list on July 1, 2023, when it will mandate the use of E-Verify for private employers with 25 or more employees.

While certain public and private employers and government contractor might be required to use the E-Verify system under applicable law, any business in any state may use the system to verify new hires voluntarily.

However, employers should discuss with legal counsel whether they would want to do so voluntarily.

Are Public Employers Required to Use E-Verify?

In addition to Florida, there are also some states, counties, and cities that require public employers and employers with government contracts to utilize E-Verify. Under a presidential Executive Order, certain federal contractors in every state, as well as their subcontractors, are required to use E-Verify under the Federal Acquisition Regulation (FAR). Exemptions and exceptions to this requirement can be found on the E-Verify website.

What Florida Employers Should Know About Senate Bill 1718

Employers covered under the new Florida law (SB 1718) must comply with the federal requirements of the E-Verify system for newly hired employees (not independent contractors) beginning July 1, 2023. Compliance with the E-Verify system prohibits employers from creating cases for employees hired before the employer enrolled in E-Verify.

The following, although not inclusive of every requirement, are just a few of the obligations employers have once an employee is hired. The E-Verify website has more details about your requirements.

• Employers have three days after the first day a new hire begins work to create a case in E-Verify to confirm the employee’s employment eligibility.
• If an employer is unable to gain access to the E-Verify system in those first three business days after a new hire, the employer must retain proof of inaccessibility (e.g., a screenshot of each day the system could not be accessed, an announcement that the system was unavailable).

Employers are also subject to recordkeeping obligations under Senate Bill 1718 that include retaining copies of the documentation presented by the newly hired employee when completing Form I-9 along with any official verification generated from the E-Verify process.

Additional employer compliance requirements under the Florida legislation include certification on its initial return each calendar year of the Re-employment Tax Return.

An employer who voluntarily uses E-Verify and wishes to document usage of the system may also make a certification on its first return each calendar year.

What Are the Penalties for Non-Compliance with Florida’s Senate Bill 1718?

Starting July 1, 2024, enforcement will begin for covered employers. If an employer fails to use the E-Verify system to verify the identity and work authorization of each new hire, the employer will be notified of a determination of noncompliance by the Department of Economic Opportunity and will have 30 days after notification to cure this noncompliance.

Penalties might be assessed for employers who fail to use the E-Verify system three times in any 24-month period. This:

• Might result in fines of up to $1,000 per day until sufficient proof of compliance is provided.
• Could result in suspension or revocation of licenses such as a franchise, permit, certification, registration, charter, or similar form of authorization required by law.
  • The number of days such licenses will be suspended varies with the number of unauthorized individuals employed.

Additional provisions and penalties can be found in the legislation.