A new law in Florida is set to impact private employers significantly, making it mandatory for those with at least 25 employees to utilize E-Verify as part of their onboarding process by July 1, 2023. As a result, impacted employers have mere weeks to establish policies and procedures to comply. Otherwise, they face stiff penalties for violations of Florida’s law aimed at combating illegal immigration into the state.
In the United States, all employers have been required to verify all new workers’ identity and employment authorization since 1986. The federal government has established two distinct systems, Form I-9 and E-Verify, to verify the eligibility of newly hired employees. While both serve the purpose of confirming an individual’s work authorization, they differ in their processes and requirements.
Form I-9 is a crucial document for employers to confirm that employees are legally eligible to work in the United States. The I-9 process involves completing and retaining this form for every person hired, regardless of their citizenship status. The form requires employees to present original and unexpired documents establishing their identity and employment authorization. Employers must review these documents to determine their authenticity and record the necessary information on the I-9 form.
E-Verify, on the other hand, is an electronic employment eligibility verification system administered by the U.S. Citizenship and Immigration Services (USCIS). It allows employers to verify the employment eligibility of newly hired employees by comparing their information against government databases. E-Verify enhances the verification process by providing real-time results, reducing the potential for human error and document fraud.
To verify identity and employment authorization in the United States, every employer must complete the I-9 form within three days of a new hire’s start date. E-Verify allows employers who have completed Form I-9 to verify the employment eligibility of their new hires electronically; it is not a substitute for the I-9 process.
Currently, using E-Verify is mandatory in Florida for public and private employers contracting with state and local governments or receiving state incentive dollars. Florida’s new law expands this requirement to all private employers with at least 25 employees.
For purposes of Florida’s law, an “employee” is “an individual filling a permanent position who performs labor or services under the control or direction of an employer that has the power or right to control and direct the employee in the material details of how the work is to be performed.” Independent contractors and services workers such as cleaners, landscapers, or other day laborers hired directly by the occupant or owner of a private residence are exempted.
When using E-Verify, employers should be aware of the potential for mismatches in the information provided by employees, resulting in a “Tentative Nonconfirmation.” Employers must allow the employee to address and resolve the mismatch. Employees unable to resolve a mismatch are ineligible for continued employment.
There may be situations where E-Verify is unavailable for three consecutive business days after the employee has started working. In such cases, Florida employers must utilize Form I-9 to verify employment eligibility and are excused from using E-Verify while it is out of service. Employers must document the unavailability of E-Verify by retaining a screenshot from each day that the system is down. This documentation and copies of the employee’s provided documentation and the results of any successful E-Verify searches must be maintained for at least three years.
The Florida Department of Economic Opportunity (DEO) will begin enforcement on July 1, 2023. Businesses have 30 days to cure noncompliance after receiving notice of a violation from the DEO. If the DEO determines that an employer failed to use the E-Verify system as required three times within 24 months, the employer will be subject to a fine of $1,000 per day, and state licenses will be revoked until the employer proves compliance.
First-time violators will face a one-year probationary period with quarterly reporting requirements. This probationary period aims to guide businesses toward compliance before any licenses are at risk of revocation. If the employer has a subsequent violation within 24 months of a previous violation, the time their state licenses are suspended is determined by the number of unauthorized workers employed.
To enroll in E-Verify, employers can visit the E-verify.gov website and follow the registration process. The steps for enrollment typically include providing organization information, signing a Memorandum of Understanding (MOU), creating user IDs, and training authorized representatives. Employers should ensure they have accurate and up-to-date information during enrollment to avoid delays. Employers who prefer assistance managing the E-Verify processes can consider engaging third-party agencies. These agencies offer E-Verify solutions that can help streamline the Form I-9 process electronically in one platform.
With the upcoming enforcement of the new law requiring the use of E-Verify for many Florida employers, it is imperative to take immediate action. By implementing E-Verify as mandated, employers can minimize the risk of penalties and maintain a workforce that aligns with legal requirements.
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