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Florida Employers Required to Use E-Verify or Keep I-9 Documents

Effective January 1, 2021, every private employer in Florida must either: (1) use E-verify, a federal web-based program, to verify the identity and work authorization for each new hire, or (2) maintain for three years copies of the documents each new hire provides to complete the federally-required I-9 form to demonstrate his/her identity and work authorization.

In addition, every public employer, contractor, and subcontractor in Florida must use E-verify to verify the identity and work authorization of each newly hired employee (including those not working on public projects).

Private Employers

If a private employer in Florida is not using E-Verify, it must maintain for three years the copies of the Form I-9 documents the newly hired employee presents to verify his/her identity and work authorization. This is a more stringent requirement than the federal I-9 requirements, which allow the employer the flexibility to choose whether it wants to retain copies of those documents. Employers must still comply with the federal law requirements of retaining a Form I-9 for each person hired for three years after the date of hire, or one year after the date employment ends, whichever is later. Although the new rule mostly applies to new hires working in Florida, it also applies to any employee in Florida who is working under a contract so that, when that contract is extended or renewed, the new E-Verify/I-9 requirements apply.

If an employer complies with the new Florida E-Verify/I-9 requirements, it will receive a rebuttable presumption that it does not knowingly employ any unauthorized foreign national. This will be very valuable in the event that the employer is subject to an E-Verify or I-9 audit. The Department of Law Enforcement, Attorney General, state attorney, and statewide prosecutor may commence investigative actions to ensure compliance. If any of these persons or entities find that an employer is not in compliance, the employer must provide an affidavit under oath that it will comply and will terminate all unauthorized foreign nationals. If the employer fails to timely provide that affidavit, it may lose all licenses to operate in Florida and/or its primary place of business. Employment of unauthorized foreign nationals, incorrect completion of Form I-9s, or inaccurate recordkeeping relating to Form I-9s may result in civil or criminal penalties under federal law.

Public Employers, Contractors & Subcontractors

Every subcontractor to a public contract must provide an affidavit to the contractor swearing under oath that it does not employ, contract with, or subcontract with any unauthorized foreign national. Thus, it is swearing as to the legality of its entire workforce, not just those employees working on the public contract. If a public employer terminates a contract with a contractor based upon a good faith belief that it or its subcontractor is not complying with the new law (by employing unauthorized foreign nationals or not properly utilizing E-Verify, for example), the contractor may not be awarded a public contract for at least one year from the date of termination. This could be financially crippling for businesses relying on public projects.

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