CRC - 2017 P 29 By Commissioner Newsome newsomer-00048-17 201729__ 1 A proposal to create 2 a new section in Article X of the State Constitution 3 to establish requirements on employers to verify the 4 employment eligibility of new employees using the 5 Employment Authorization Program or any successor 6 program administered by the Federal Government and to 7 provide for enforcement by the Department of Business 8 and Professional Regulation. 9 10 Be It Proposed by the Constitution Revision Commission of 11 Florida: 12 13 A new section is added to Article X of the State 14 Constitution to read: 15 ARTICLE X 16 MISCELLEANOUS 17 (a) PUBLIC POLICY. 18 (1) An employer who knowingly or intentionally employs an 19 unauthorized alien violates the employer’s licenses. 20 (2) Effective July 1, 2020, every employer shall, after 21 making an offer of employment which has been accepted by an 22 employee, verify the employment eligibility of each new employee 23 using the employment authorization program. Such verification 24 must occur within the period stipulated by federal law or 25 regulations after the hiring of the employee. 26 (3) The provisions of this section are enforceable without 27 regard to race, religion, gender, ethnicity, or national origin. 28 (b) DEFINITIONS. As used in this section, the term: 29 (1) “Department” means the Department of Business and 30 Professional Regulation or its successor agency. 31 (2) “Employee” means any person who performs employment 32 services in this state for an employer pursuant to an employment 33 relationship between the person and employer. 34 (3) “Employer” means any individual or type of organization 35 transacting business in this state which holds or has applied 36 for a license issued by an agency in this state and employs 37 individuals who perform employment services in this state. The 38 term does not include an entity that hires a bona fide 39 independent contractor or the occupant or owner of a residence 40 who hires casual domestic labor to perform work customarily 41 performed by a homeowner entirely within a residence. 42 (4) “Employment authorization program” means the E-verify 43 program (formerly the “Basic Pilot Program”) under Pub. L. No. 44 104-208, Div. C, title IV, Subtitle A, 110 Stat. 3009-655 (Sept. 45 30, 1996), as amended, or any successor program designated by 46 the federal government for verification that an employee is not 47 an unauthorized alien. 48 (5) “Employment of unauthorized alien” means an employment 49 related act designated as unlawful under section 274A of the 50 Immigration and Nationality Act, 8 U.S.C. s. 1324a, as amended. 51 (6) “License” means an agency permit, certificate, 52 approval, registration, charter, or similar form of 53 authorization that is required by law and that is issued by any 54 agency or political subdivision of this state for the purpose of 55 operating a business in this state, excluding professional 56 licenses, but including employment licenses, articles of 57 organization, articles of incorporation, a certificate of 58 partnership, a partnership registration, a certificate to 59 transact business, or similar forms of authorization issued by 60 the state. 61 (7) “Unauthorized alien” means an unauthorized alien as 62 defined by 8 U.S.C. s. 1324a(h)(3). 63 (c) COMPLIANCE. 64 (1) The department shall adopt rules necessary for the 65 implementation and enforcement of this section by July 8, 2019. 66 If the department does not adopt rules within the timeframe set 67 forth in this paragraph, a resident of this state has standing 68 to seek judicial relief to compel compliance with this 69 paragraph. 70 (2) The department shall develop and administer a statewide 71 random auditing program to inspect employers for compliance with 72 this section. The department and its inspectors, agents, or 73 designees, upon proper presentation of credentials to the owner, 74 manager, or agent of the employer, may enter at reasonable times 75 and have the right to question, either publicly or privately, 76 any employer, owner, manager, or agent and the employees of the 77 employer and inspect, investigate, reproduce, or photograph 78 original business records relevant to determining compliance 79 with this section. 80 (3) Any person who has actual or constructive knowledge 81 that an employer has employed an unauthorized alien within the 82 preceding 90 days may file a complaint with the department. A 83 person who knowingly files a false and frivolous complaint under 84 this subsection commits a misdemeanor of the second degree, 85 punishable as provided in s. 775.082 or s. 775.083, Florida 86 Statutes (2017). 87 (4) An employer who fails to verify eligibility of new 88 employee within three business days is subject to the following 89 penalties: 90 a. For a first violation by an employer, the department 91 shall place the employer on probation for a period of one year, 92 during which time the employer must submit quarterly reports to 93 the department demonstrating compliance. 94 b. A subsequent violation within three years of the first 95 violation results in the suspension of the employer’s licenses 96 for at least ten days, but not more than thirty days. 97 (5) An employer who knowingly or intentionally employs an 98 unauthorized alien is subject to the following penalties: 99 a. If the department has determined that a licensee 100 knowingly or intentionally employs an unauthorized alien, the 101 department must, upon seventy-two hours written notice, suspend 102 all licenses held by the employer. The employer’s licenses must 103 be reinstated when the employer demonstrates to the satisfaction 104 of the department that the unauthorized alien has been 105 terminated, and the employer has paid a reinstatement fee equal 106 to the cost of investigating and enforcing the matter, not to 107 exceed $1,000 for each investigation. 108 b. If the investigation determined that at least five 109 unauthorized aliens were employed by the licensee on the same 110 date, the department must suspend the licenses for at least an 111 additional seven days, but not more than thirty days, following 112 compliance by the employer with the requirements of subparagraph 113 a. For a subsequent violation under this subparagraph, within 114 three years of the first suspension, the employer’s licenses are 115 suspended for at least an additional thirty days, but not more 116 than sixty days, following compliance with subparagraph a. For a 117 third violation within six years of the first suspension, and 118 for each subsequent violation of this subparagraph, the 119 employer’s licenses are suspended for an additional 180 days. 120 c. During the period of suspension, an employer is 121 prohibited from engaging in activities for which the suspended 122 license or licenses was required by law. 123 (6) The department shall take the following measures in 124 order to assist employers in complying with the requirements of 125 this section: 126 a. The department shall establish a website to provide 127 assistance to employers in complying with this section. On the 128 website, the department shall post and maintain a public 129 database disclosing employers who have violated the requirements 130 of this section. 131 b. All license applications must include a notice of the 132 requirements of this section. 133 c. The department shall submit a report of each 134 investigation for which a penalty has been imposed pursuant to 135 paragraphs (4) or (5) to United States Immigration and Customs 136 Enforcement or its successor agency. 137 (d) SEVERABILITY. The provisions of this section are 138 severable and if any clause, sentence, paragraph, or section of 139 this measure, or an application thereof, is adjudged invalid by 140 any court of competent jurisdiction, other provisions shall 141 continue to be in effect to the fullest extent possible. 142 (e) LEGISLATION. This section does not limit the 143 legislature from enacting laws consistent with this section. 144 (f) PRESUMPTION OF COMPLIANCE. An employer who in good 145 faith verifies the immigration status of a new employee pursuant 146 to the employment authorization program is presumed to have 147 complied with the requirements of this section. An employer who 148 terminates an employee in order to comply with the requirements 149 of this section is not subject to a civil action for wrongful 150 termination of the employee.