Beginning in July, Florida Will Require Businesses with 25+ Employees to Use E-Verify

Starting July 1, 2023, a new Florida state law will require private employers with at least 25 employees to use E-Verify, the digital employment eligibility verification tool, during the employee onboarding process.
 
E-Verify is an online tool operated by the U.S. Department of Homeland Security that allows employers that complete Form I-9 electronically to verify employment eligibility for new hires. Employers using E-Verify may not do so selectively under the law; they must use the system to verify all new hires regardless of their citizenship.
 
Currently, using E-Verify is mandatory in Florida for both public and private employers that contract with local or state governments or receive state incentive dollars. This new law expands that requirement to all Florida-based private employers with 25+ employees, even if they don’t receive money from the state.
 
SB 1718, which was signed into law on May 10, 2023, will also increase penalties for noncompliance and for employers that knowingly hire undocumented workers. All employers covered by SB 1718 will be required to complete Form I-9 within three days of a new hire’s start date to ensure employment authorization and verify their identity. Employers will also be required to certify on their first reemployment tax return that E-Verify was used to confirm new hire employment eligibility.
 
Applicable employers that don’t work with a professional employer organization (PEO) will be directly responsible for accessing the E-Verify system. Here are some key takeaways for Florida-based employers impacted by this new law.  
Compliance dates
SB 1718 applies to new employees hired by relevant employers on July 1, 2023 and after. E-Verify uses information available to the Social Security Administration and the Department of Homeland Security to confirm employee records and identity. “Employee,” for the purposes of this law, are individuals filling a permanent position under the employer’s control. Independent contractors don’t fit this definition.
 
If the information provided during the E-Verify process doesn’t match SSA and DHS information, the system will provide a “Tentative Nonconfirmation” notice. Employers must relay this notice to the employee in question, who then has 10 days to tell the employer if they will resolve the mismatch.
 
Noncompliance penalties
Penalties for failing to comply with the law will kick in on July 1, 2024. After this point, businesses will have 30 days after receiving notice from the Department of Economic Opportunity (DEO) to address noncompliance issues.
 
If the DEO determines noncompliance, several enforcement actions may apply, including:

• $1,000/day fine for three or more violations within a 24-month period. This fine will continue until the employer resolves the issue and provides sufficient evidence that they are now in compliance.
• One-year probation. An employer’s first violation results in a one-year probationary period. During this period, the employer will be required to provide documentation each quarter proving the regulation is being followed.
• Suspension/revocation of business licenses. If an employer repeatedly violates the regulation, the state can suspend and/or revoke applicable business licenses.

 
Presumed compliance
Under the new law, employers using the E-Verify system establish a “rebuttal presumption” that they aren’t knowingly employing any unauthorized workers. Additionally, if the E-Verify system is down for three days and an employer can’t complete the new hire process in a timely fashion, they can benefit from the “rebuttal presumption” by:

• Completing Form I-9 within the three-day window
• Taking a screenshot of E-Verify each day showing the system is unavailable
• Retaining any official notice or other communication about the system’s unavailability

 
Annual certifications
Employers required by this new law to use the E-Verify system will have to certify compliance on their first tax return when either making contributions to or reimbursing the state’s unemployment compensation or reemployment assistance systems.
 
Record retention requirements
Employers must retain copies of employee documentation, as well as any official verification generated by E-Verify, for at least three years.
 
PEO: Simplifying the E-Verify process
For a business owner or a busy HR team, SB 1718 may present more headaches and hindrances than you’re willing to deal with. PEO partnerships exist for just this reason – the PEO is responsible for employment law compliance regarding hiring and more, leaving you free to focus on critical business tasks.
 
LandrumHR has been serving businesses in the Florida panhandle for over 50 years. If you need help ensuring your company is SB 1718 compliant, contact our team to learn how LandrumHR can support your compliance needs.