Our Proposed Amendment

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SUMMARY OF PROPOSED E-VERIFY CONSTITUTIONAL AMENDMENT

Employers’ Mandate to Verify the Employment Eligibility of all New Employees

Effective on July 1 of the year following passage of this amendment by the voters, all Florida employers who hold business licenses shall verify the employment eligibility of all new employees through the U.S. Department of Homeland Security’s E-Verify system. The Department of Business and Professional Regulation shall administer this amendment through regulations, random audits, investigations of complaints, and enforcement actions. Authorizes penalties for violations of this amendment. Provides definitions.

FULL TEXT OF PROPOSED E-VERIFY CONSTITUTIONAL AMENDMENT

(A) PUBLIC POLICY.

  • (1) An employer who knowingly or intentionally employs an unauthorized alien violates the employer’s licenses.
  • (2) Effective on July 1 of the year following passage of this section by the voters, every employer shall, after making an offer of employment which has been accepted by an employee, verify the employment eligibility of each new employee using the Employment Authorization Program. Such verification shall occur within the period stipulated by federal law or regulations after the hiring of the employee.
  • (3) The provisions of this section shall be enforceable without regard to race, religion, gender, ethnicity, or national origin.

(B) DEFINITIONS.

  • (1) “Department” means the Department of Business and Professional Regulation or its successor agency.
  • (2) “Employee” means any person who performs employment services in this state for an employer pursuant to an employment relationship between the person and employer.
  • (3) “Employer” means any individual or type of organization transacting business in this state which holds or has applied for a license issued by an agency in this state and employs individuals who perform employment services in this state. The term does not include an entity that hires a bona fide independent contractor or the occupant or owner of a residence who hires casual domestic labor to perform work customarily performed by a homeowner entirely within a residence.
  • (4) “Employment Authorization Program” means the E-verify Program (formerly the “Basic Pilot Program”) under Pub. L. No. 104­208, Div. C, title IV, Subtitle A, 110 Stat. 3009-655 (Sept. 30, 1996), as amended or any successor program designated by the federal government for verification that an employee is not an unauthorized alien.
  • (5) “Employment of unauthorized alien” means an employment-related act designated as unlawful under section 274A of the Immigration and Nationality Act, 8 U.S.C. § 1324a, as amended.
  • (6) “License” means an agency permit, certificate, approval, registration, charter, or similar form of authorization that is required by law and that is issued by any agency or political subdivision of this state for the purpose of operating a business in this state, excluding professional licenses, but including employment licenses, articles of organization, articles of incorporation, a certificate of partnership, a partnership registration, a certificate to transact business, or similar forms of authorization issued by the state.
  • (7) “Unauthorized alien” means an unauthorized alien as defined by 8 U.S.C. § 1324a(h)(3).

(C) COMPLIANCE.

  • (1) The Department shall issue reasonable regulations necessary for the implementation and enforcement of this section no later than 6 months after the effective date of this section.
    • (a) In the event the Department does not issue regulations within the time limits set forth in this section, any Florida citizen shall have standing to seek judicial relief to compel compliance with the Department’s constitutional duties.
  • (2) The Department shall develop and administer a statewide random auditing program to inspect employers for compliance with the provisions of this section.
    • (a) The Department, its inspectors, agents, or designees, upon proper presentation of credentials to the owner, manager, or agent of the employer, may enter at reasonable times and have the right to question either publicly or privately any employer, owner, manager, or agent and the employees of the employer and inspect, investigate, reproduce, or photograph original business records relevant to determining compliance with the provisions of this section.
  • (3) Any person who has actual or constructive knowledge that an employer has within the previous 90 days employed an unauthorized alien may file a complaint with the Department.
    • (a) A person who knowingly files a false and frivolous complaint under this subsection commits a misdemeanor of the second degree.
  • (4) Employer fails to verify eligibility of new employee within 3 business days. Penalty: For a first occurrence by an employer of failure to verify a new employee through the Employment Authorization Program within 3 business days of hiring, the Department shall place the employer on probation for a period of one year, during which time the employer must submit quarterly reports to the Department demonstrating compliance. A subsequent violation within 3 years shall result in the suspension of the employer’s licenses for at least 10 days but not more than 30 days.
  • (5) Employer knowingly employs an unauthorized alien. Penalty:
    • (a) When the Department has determined that a licensee knowingly or intentionally employs an unauthorized alien, the Department shall, upon 72 hours written notice, suspend all licenses held by the employer. The employer’s licenses shall be reinstated when the employer demonstrates to the satisfaction of the Department that the unauthorized alien has been terminated, and the employer has paid a reinstatement fee equal to the cost of investigating and enforcing the matter, not to exceed $1,000 for each investigation.
    • (b) If the investigation determined that at least 5 unauthorized aliens were employed by the licensee on the same date, the Department shall suspend the licenses for at least an additional 7 but not more than 30 days following compliance by the employer with the requirements of subparagraph (a). For a subsequent violation under this subparagraph, within 3 years of the first suspension, the employer’s licenses shall be suspended for at least an additional 30 days but not more than 60 days following compliance with (5)(a). For a third occurrence within 6 years of the first suspension, and for each subsequent violation of this subparagraph, the employer’s licenses shall be suspended for an additional 180 days.
    • (c) During the period of suspension, it shall be unlawful for the employer to engage in activities for which the suspended license or licenses was required by law.
  • (6) Employer Compliance Assistance by State.
    • (a) The Department shall establish a dedicated website to assist employers with compliance with this section. The Department shall maintain a public database of violations of this section which shall be posted on the website.
    • (b) Notice of the requirements of this section shall be included with all license applications.
    • (c) The Department shall submit a report of each investigation for which a penalty has been imposed pursuant to subsection (C)(4) or (5) to the United States Immigration and Customs Enforcement agency.

(D) SEVERABILITY.

The provisions of this section are severable and if any clause, sentence, paragraph or section of this measure, or an application thereof, is adjudged invalid by any court of competent jurisdiction other provisions shall continue to be in effect to the fullest extent possible.

(E) LEGISLATION.

Nothing in this section shall limit the Legislature from enacting laws consistent with this section.

(F) PRESUMPTION OF COMPLIANCE.

An employer who in good faith verifies the immigration status of a new employee pursuant to the Employment Authorization Program shall be presumed to have complied with the provisions of this section. An employer who terminates an employee in order to comply with the provisions of this section shall not be subject to a civil action for wrongful termination of the employee.