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The Verification Conundrum for Florida Employers: to E-Verify or not to E-Verify

In January, Florida’s new E-Verify law went into effect, ushering in yet another new compliance requirement for HR managers to monitor and track. For many organizations, this is nothing new. During the past 12 years, states across the country have mandated a wide variety of immigration-related requirements on employers – an unfortunate byproduct of our national indecision on how best to control unauthorized employment.

But this new Florida law presents an interesting twist. Most state laws mandate E-Verify use across the board, or by a particular employer category. For example, Alabama, Arizona, Mississippi and South Carolina have across the board mandates for all employers. Meanwhile, Indiana, Missouri, Nebraska, Oklahoma, Pennsylvania and Texas mandate E-Verify for public employees and state contractors.

Florida has adopted a blended approach, with an added complication for private employers. As described below in more detail, Florida employers must either use E-Verify or make sure to copy and retain I-9 documents for a period of three years.

If you’re already using E-Verify in Florida, congratulations – this law will not affect you very much. But employers who are NOT using E-Verify in Florida now have a crucial decision to make: to E-Verify or not to E-Verify. That is the question. And the answer is murky.

But before we dive into the mud, let’s do a quick review of this new E-Verify law and how it changes the verification game (for some employers).

Florida’s E-Verify Law (in a nutshell)

On June 30, 2020, Florida Governor Ron DeSantis signed Senate Bill (SB) 664 into law which makes the use of E-Verify mandatory for all government employers, contractors, and certain private employers in the state beginning on January 1, 2021. The law also requires private employers who choose NOT to use E-Verify to maintain copies of the documents used to complete the I-9 for a period of 3 years.

But wait, you say, didn’t Florida already have an E-Verify mandate on the books? Right you are, but that requirement was more limited. Specifically, Executive Order 11-116 mandated that “executive agencies” in the state use E-Verify and also flow down the obligation to their state contractors.

This latest mandate expands the E-Verify requirement to all public employers in Florida, including local governments, municipalities, and school districts – entities which are not considered “executive agencies” under the 2011 executive order.

And as mentioned above, Florida now also requires private employers who are NOT using E-Verify to retain copies of the identity and employment authorization documents presented for the I-9 process for a period of three years. Here’s how it’s worded:

A private employer shall verify a person’s employment eligibility by:

1. Using the E-Verify system; or

2. Requiring the person to provide the same documentation that is required by the United States Citizenship and Immigration Services on its Employment Eligibility Verification form (Form I-9). The private employer must retain a copy of the documentation provided under this subparagraph for at least 3 years after the person’s initial date of employment.

At first glance, the alternative to using E-Verify in Florida seems rather benign (and frankly, duplicative) since federal law already requires employers to only accept documents from the Form I-9, List A, B, or C. The real kicker arrives with the last sentence – mandating that employers retain document copies, a policy which is not required under federal law.

Enforcement of Florida’s E-Verify Law Against Private Employers

If a private employer does not follow the rules with regards to employment verification, the Department of Economic Opportunity (DEO) shall require them to provide an affidavit stating that: (a) they will comply with the verification requirements, (b) they have terminated the employment of all unauthorized workers in the state, and (c) they will not intentionally or knowingly employ an unauthorized worker in the state.

If the private employer does not provide the required affidavit within 30 days after the DEO’s request, the appropriate licensing agency shall suspend all applicable licenses held by the private employer until they provide the department with the required affidavit. For any private employer found to have violated the above three times within any 36 month period, the appropriate licensing agency shall permanently revoke all licenses that are held by the private employer.

Evaluating the Options

Let’s review. Under Florida’s new E-Verify law, private employers have a choice – use E-Verify or agree to make copies of the documents presented as part of the I-9 process (even though federal law does not require it). How big a deal is this change?

According to E-Verify statistics, there are approximately 65,000 legal entities enrolled in E-Verify that hail from the state of Florida – a relatively small percentage of the roughly 2.5 million businesses that operate in the sunshine state. This larger population of employers must now decide whether to take the E-Verify plunge or opt for the alternative – copying and retaining documents for three years.

Employers pondering this decision should keep the following points in mind:

E-Verify Considerations

  • Enrolling in E-Verify is a contractual commitment, governed by a Memorandum of Understanding which sets forth your obligations and the requirements of the program
  • Overall, E-Verify is viewed favorably by its users, routinely scoring high in customer satisfaction (especially as compared with other federal government programs).
  • On the other hand, critics have questioned the program’s accuracy while highlighting that E-Verify can effectively block legal (i.e., work-authorized) individuals under certain circumstances.
  • While participation in E-Verify is “free” (in the sense that the government does not charge a fee), employers have noted that there are significant setup and maintenance costs associated with learning all of the E-Verify rules, training HR staff, and implementing the process at participating locations.
  • An electronic I-9 system with integrated E-Verify can significantly reduce the transactional burden and help employers manage the entire process

Copying and Retaining Documents

  • Retaining document copies is also a commitment, since employers must do so consistently for all employees in order to avoid potential discrimination issues.
  • While the Florida law only requires employers to retain document copies for three years, the Department of Homeland Security generally requires employers to retain document copies (if any) for as long you retain the I-9.
  • I-9 documents contain personally identifiable information, which must be carefully safeguarded and protected.
  • Retaining copies can reduce civil monetary fines and penalties in the event an audit reveals paperwork mistakes in how the documents were recorded on the I-9.
  • A smart electronic I-9 platform can help you implement a consistent document retention policy with data security (and redundancy) in mind.

Conclusion

Florida employers now have an interesting choice for managing new hire employment eligibility verification – enroll in the government’s E-Verify system or implement a policy to retain I-9 document copies for three years. Both options have their pluses and minuses, and ultimately HR must consider both the legal and practical aspects of these decisions.

Large employers will also want to consider their “national” E-Verify strategy as well. As more states jump onto the E-Verify bandwagon, it may be more of a question of when, rather than if, your business should use E-Verify.

In the meantime, check out our interactive E-Verify map for a comprehensive look at E-Verify requirements nationwide. And remember, you can always drop us a line if you have questions or if we can assist in helping your organization with I-9 and E-Verify questions.


About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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