On May 10, 2023, Florida Governor Ron DeSantis signed SB 1718 into law. The legislation, largely aimed at furthering the state's handling of the current migrant influx, contained several provisions pertinent to employers, including mandating E-Verify participation for organizations with 25 or more employees. Employers must comply with this new change effective July 1, 2023, and the penalties for noncompliance are steep.

Currently, Florida mandates E-Verify participation for public employers and private employers contracting with state and local governments or receiving state incentive dollars. The new law will mean that most Florida employers will have additional onboarding and reporting obligations.

Impact on Employers

1. Private employers must process each new employee hired on or after July 1, 2023 through the E-Verify system. More information on the E-Verify process and system can be found here.
2. Once processed, employers must retain a copy of the documentation used for Form I-9 completion and any official documentation generated by E-Verify (such as the E-Verify certificate) for three years.
3. Certification of participation is required on the organization's first return when making contributions to or reimbursing the state's unemployment compensation or reemployment compensation system each year.
4. While there is a rebuttable presumption of compliance, if the E-Verify system is down for some reason, employers must document the outage if it causes a delay in E-Verify case creation and processing.
5. Enforcement and Penalties are costly. While employers will have 30 days to cure after receiving a notice from the Department of Economic Opportunity (DEO), the penalties are steep.
   a.) A first violation will result in a probationary period with reporting requirements;
   b.) If the DEO determines three instances of noncompliance within a 24 month period, a $1,000 per day fine is mandatory until the employer provides proof of compliance.

Takeaways for Employers

1. Determine whether your organization qualifies under the new regulation and institute procedures for determining when that 25th hire will occur, triggering compliance.
2. If your organization currently has 25 or more employees, examine their current E-Verify situation and enroll with E-Verify, if necessary.
3. Update onboarding process flows to incorporate E-Verify processing and determine who will handle which part of the process, including interfacing with the new hire and certifying compliance on the annual returns.
4. Update onboarding policies to include E-Verify participation and how the organization will handle Tentative Nonconfirmations and Final Nonconfirmations. Consistent application of these policies is extremely important to guard against discrimination allegations that would be handled by the Department of Justice, Immigrant and Employee Rights Section.
5. Organizations must also begin photocopying documents used for Form I-9 completion for retention under this statute and remember, once you begin photocopying documents for one person, you must photocopy them for all future hires.
6. Importance of maintaining records of E-Verify case processing and completion. Employers are well-advised to keep Forms I-9, photocopies of documents, and E-Verify certificates in a separate, alphabetized binder or folder for quick and easy review and surrender to authorities in case of an audit. Keeping these documents in personnel folders risks documents being lost, or destroyed upon termination (and therefore not retained for the required time period under the state's regulations or federal requirements). Worse yet, personal material may be inadvertently turned over to the agency, resulting in a PII spill.

Posted: May 30, 2023

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