The new statute, which generally takes effect July 1, 2023 imposes new requirements on private employers with more than 25 employees, and contractors and subcontractors engaged in public construction projects. Penalties for non-compliance can include losing your contractor’s license. The statute also restricts the use of certain types of driver’s licenses issued by other states, requires certain reporting by hospitals, and increases criminal penalties for human trafficking.
While the focus of this article will primarily be on the direct impacts of SB 1718 on the construction industry in Florida, the provisions of the bill are wide-ranging and there are likely to be indirect impacts as well as companies and employees evaluate new requirements and any risks associated with them.
First. the new statute makes sweeping changes to Florida’s general labor regulations, found in Chapter 448, Florida Statutes. Section 448.09, Florida Statutes, is amended as follows:
It is unlawful for any person to knowingly employ, hire, recruit or refer for employment an alien who is not authorized to work in this country - 448.09(1), Fla. Stat.
If Florida’s Department of Economic Opportunity finds or is notified that an entity has knowingly employed an unauthorized alien without verifying the employment eligibility of that person, the Department must enter an order pursuant to Chapter 120 making such determination and requiring repayment of any economic development incentive that has been given to the employer - 448.09(2), Fla. Stat.
If a violation is found, the employer is put on probation for one year, and must file quarterly reports demonstrating compliance with the requirements of the new statute - 448.09(3), Fla. Stat.
Two violations within 24 months will be grounds for suspension or revocation of licenses issued by a licensing agency subject to Chapter 120 - 448.09(4), Fla. Stat.
As a brief aside, Florida’s Department of Business and Professional Regulation, is subject to Chapter 120, Florida Statutes, meaning these provisions are applicable to contractor licenses.
The severity of the penalty with respect to a license depends on the number of unauthorized alien employees involved in the violation:
For 1 – 10 unauthorized employees – 30 days suspension
For 11 – 50 unauthorized employees – 60 day suspension
For more than 50 unauthorized employees– revocation of all licenses
Second, 448.095, Florida Statutes, is almost completely re-written and now includes the following requirements:
Employers must verify employment eligibility within three business days of the employees first day or work.
Public agencies must use e-verify to do this.
Private employers with 25 or more employees must use e-verify.
Employers must certify compliance with this on their tax returns each year and must retain documents provided to support an employee’s eligibility for at least three years.
Companies cannot continue to employ an unauthorized alien after learning that the person is or has become an unauthorized alien.
Employee leasing companies are responsible for this verification, unless there is an agreement with their customer making the customer responsible for it.
Using e-verification or obtaining documents acceptable under the I-9 form, creates a rebuttable presumption that the employer has not violated the law.
Further, section 448.095, Florida Statutes, is amended to include the following requirements for contracting with public agencies:
Public agencies must require in their contracts with a contractor, and any subcontractor, that the contractor and subcontractors use the e-verify system to verify the work authorization status of all new employees of the contractor or subcontractors.
Public agencies, contractors, and subcontractors are not allowed to enter into contracts with each other unless they register with and use the e-verify system.
Subcontractors must provide contractors with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. The contractor shall maintain a copy of such affidavit for the duration of the contract.
Public agencies, contractors, or subcontractors who have a good faith belief a party to their contract has violated the e-verify requirements must terminate the relevant contract
Contracts terminated under this provision are not a breach of the contract
If a contract is terminated with a contractor under this provision, then the contract cannot be awarded a public contract for at least 1 year from the date of the termination, and the contractor is liable for any additional costs incurred by a public agency as a result of the termination of a contract.
Contractors can file a cause of action to challenge a termination of the contract, but must do so within 20 days after the termination.
Finally, beyond the direct provisions of the statute relating to the construction industry, there are other provisions that can impact companies and employees in general:
Counties and municipalities cannot provide funds for issuing identification cards to individuals who do not provide proof of lawful presence in U.S.
Driver’s licenses that are issued by another state exclusively to undocumented immigrants who are unable to prove lawful presence in the US when licenses are issued are deemed invalid in Florida and do not authorize the holder to operate a motor vehicle in this state.
Law enforcement is required to issue a citation for driving without a license to persons who have this license
The state will provide a list of invalid classes of invalid driver’s licenses from other states
Hospitals that accept Medicaid must include a provision on admission or registration forms where the patient can indicate whether the patient is a US citizen or lawfully in this country or not, or whether they declined to answer
Hospitals must submit quarterly reports of the statistics related to this.
Hospitals must also report the uncompensated costs associated with providing care for those not lawfully in this country
Human trafficking penalties are increased significantly.
There can be no doubt the new statutes will both directly and indirectly impact the construction industry. For a more general employment law look at the new law, you should also click to read this article: Florida’s New Immigration Law and How It Could Impact Private Employers