Florida Requires Certain Employers to Use E-Verify

Florida has enacted legislation (Senate Bill 1718) that requires certain employers to use E-Verify to confirm a new hire is eligible to work in the United States. The requirement takes effect July 1, 2023.

The details

By way of background, E-Verify is an internet-based system operated by the federal government that enables employers to determine a new hire’s eligibility to work in the United States.  Notably, employers that use E-Verify must still complete a Form I-9 for each new hire.

For employees hired on or after July 1, 2023, covered Florida employers must use E-Verify to confirm the newly hired employee is eligible to work in the United States. These employers must retain a copy of the documentation provided and any official verification generated, if applicable, for at least 3 years. 

Under the new law, an employer may not continue to employ a worker after obtaining knowledge that the individual is unauthorized to work in the United States.

If the E-Verify system is unavailable for 3 business days after the first day that the new employee begins working, and an employer cannot access the system to verify a new employee’s employment eligibility, the employer must still complete the Form I-9 and document the unavailability of the E-Verify system.

The employer must do the latter by retaining a screenshot from each day that shows the employer’s lack of access to the system, a public announcement that the E-Verify system is unavailable, or any other communication or notice recorded by the employer regarding the unavailability of the system.

Employers that are required to use E-Verify must also certify on their first return each calendar year to the  tax service provider that they are in compliance with the requirement when making contributions to or reimbursing the state’s unemployment compensation or reemployment assistance system.

Starting on July 1, 2024, penalties for non-compliance with the E-Verify requirements include potential Florida Department of Economic Opportunity fines of $1,000 per day until the employer provides sufficient proof to the department that the noncompliance was resolved as well as the potential for suspension of a business license.

Impact to Clients of Professional Employer Organizations

The law generally applies to employers employing 25 or more employees but is silent on how employers in a co-employment relationship with a Professional Employer Organizations (PEO) should determine employer coverage (e.g. should coverage be determined based on the number of employees employed by a PEO client or by the number of employees employed by the PEO with all clients?).    In light of this ambiguity and the consequences of non-compliance, ADP TotalSource will begin the process of E-Verify enrollment for all clients with employees working in FL (regardless of the number of employees employed by each client standing alone) and will act as the client’s E-Verify agent as further described below.

Next steps

If you have employees working in Florida, you should expect the following:

ADP TotalSource is currently awaiting guidance from the government on a PEO’s ability to certify compliance on behalf of client companies and will communicate updates as this guidance becomes available. 

Please contact your HR Business Partner if you have any questions.

Thank you,

ADP