Rick Blystone & Paul Messina, Attorneys, Cotney Construction Law
The Florida Legislature recently passed a new law that changes how employers must account for their employees’ eligibility to work in the United States. This new law was signed by Governor Ron DeSantis on June 30, 2020, with an effective date of July 1, 2020. However, the part of the law that is the subject of this article does not go into effect until January 1, 2021.
The new law has several provisions that will affect contractors doing business in the state of Florida which center around the employment eligibility of their workforce. Before getting into that, it is important to understand how the law defines a few different groups.
■ A contractor is defined as a person or entity that has entered or is attempting to enter into a contract with a public employer to provide labor, supplies or services to such employer in exchange for salary, wages or other remuneration.
■ A public employer is defined as an entity within state, regional, county, local or municipal government, whether executive, judicial or legislative, or any public school, community college or state university that employs persons who perform labor or services for that employer in exchange for salary, wages or other remuneration or that enters or attempts to enter into a contract with a contractor.
■ A subcontractor is defined as a person or entity that provides labor, supplies or services to or for a contractor or another subcontractor in exchange for salary, wages or other remuneration.
■ A private employer is defined as a person or entity that transacts business in Florida, has a license issued by an agency and employs persons to perform labor or services in this state in exchange for salary, wages or other remuneration.
Under the new law, every public employer, contractor, and subcontractor will be required to use E-Verify for all newly hired employees after January 1, 2021 and are prohibited from entering into construction contracts unless each party to the contract is registered with E-Verify. Thus, for public projects, all prime contractors and subcontractors will be required to use E-Verify. Additionally, for public projects, each subcontractor is required to provide an affidavit to the contractor stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien—a statement which, if untrue, could have profound legal consequences.
While prime contractors working on non-public projects are required by the statute to verify employment eligibility of its workers, as private employers, they can choose to either register with and use E-Verify or keep using Form I-9 to verify employment eligibility. The statute adds an additional requirement when solely using Form I-9, however, as compared to the federal regulations. Under the statute, the employer will be required to retain copies of the documents presented to the employer by the employee as part of the I-9 process, whereas federal regulations do not require employers to do so.
The statute further mandates that each party has a statutory duty to terminate any contracts where it has a good faith belief that another party has knowingly employed, hired, recruited or referred for employment an alien who is not duly authorized to work in the United States. Any such contracts terminated under this provision of the law will not constitute a breach of contract. This is intended to bar these types of breach of contract lawsuits. Further, the law provides for the opportunity to challenge the termination of the contract, so long as it is filed within 20 calendar days of the termination with a circuit or county court. If a contractor has its contract terminated with a public employer under this provision, it will be barred for one year from being awarded a public contract and the contractor will be liable to the public employer for any additional costs incurred as a result of the termination of the contract.
For private employers, the statute provides the State with the ability to inquire about compliance with the statute. Any private employer that is not either registered with and using E-Verify, or verifying employment eligibility using Form I-9 will be required to provide the probing agency/department with an affidavit within 30 days after receiving the request stating that the private employer will comply going forward, has terminated the employment of all unauthorized aliens and will not intentionally or knowingly employ an unauthorized alien. The failure to do so will result in the suspension of any licenses issued by the State until such affidavit is provided. The State will only suspend the license specific to the business location where the unauthorized employee performed work unless no such location-specific license exists, in which case the license will be suspended statewide. If a private employer is found to violate the statute three times within a 36-month period, the license, as discussed above, will be permanently revoked.
While the portion of the law described in this article has not gone into effect and it is too early to see how the State will apply this law in practice, the desired outcome of the law is clear: the State is cracking down on the use of unauthorized labor in the construction industry in the state of Florida. The law imposes several new requirements to enforce federal employment authorization laws and puts the onus on applicable contractors and subcontractors to ensure compliance while providing the ability for the imposition of harsh penalties for noncompliance. Ultimately, the law will create a fundamental shift in the way contractors and subcontractors do business in Florida going forward. Florida public employers and those who bid on public contracts should be ready to comply with the new law by updating their onboarding and new hire practices.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Cotney Construction Law is an advocate for the roofing industry and General Counsel of FRSA. For more information, contact the authors at 866-303-5868 or go to www.cotneycl.com.
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