On June 30, 2020, Florida Governor Ron DeSantis signed SB 664: Verification of Employment Eligibility into law. The bill requires public employers, contractors, and subcontractors to use E-Verify, and requires private employers to use E-Verify or to use the Form I-9 and maintain copies of the documents used to complete the Form I-9 for three (3) years. As discussed below, although the main focus of this bill by most employers and the press has been on the expansion of the required use of E-Verify, the more troubling aspect of this bill may be the mandatory retention of documents.
Initially, the bill would have required E-Verify to be utilized for all employers’ new hires, however, that aspect of the legislation failed in the Florida legislature.2 However, the end result of the passed legislation places a burdensome documentation requirement on private employers in Florida that exceeds the requirements set out in federal law with respect to the type of documentation an employer must maintain with the Form I-9. In doing so, it potentially creates a two-track system for private employers with operations and licensed to do business in Florida when completing Form I-9. Or, in the alternative, it requires private employers to change their respective Form I-9 processes to photocopy documentation presented by the employee for Section 2 purposes.
Effective Date and Requirements
Effective January 1, 2021, private employers in Florida must (a) use the E-Verify system for new hires; or (b) duplicate the Form I-9 process by requiring the documents employees presented during the Form I-9 completion be copied and retained in order to comply with Florida law. Employers must maintain those documents for at least three years after the date of hire.3
If an employer currently has a practice of photocopying documents, presumably they are not affected, because pursuant to federal law, employers must retain the Form I-9 and any corresponding documents photocopied for Form I-9 Section 2 purposes for three (3) years after date of hire or one (1) year after termination, whichever is later.
However, if an employer currently does not photocopy documents presented by new hires when completing Form I-9 (which is not required under federal law), they are most directly impacted by this new requirement. They either have to change their practices with respect to Form I-9 completion and begin photocopying documents or run the risk of an enforcement action by Florida authorities.
Non-compliance with Florida law may lead to revocation of a company’s license to do business in the state. The following Florida agencies may request proof of documentation, including the Florida Department of Law Enforcement, the Attorney General, the state attorney, and a state prosecutor. While the legislation affords employers a period to cure the violation and provide an affidavit of compliance, failure to do so may lead to suspension of their business license. Repeat violators are subject to revocation of their business license.
The Form I-9 and Documentation Requirements
As a general rule, unless an employer uses E-Verify, photocopying the documents presented for Form I-9 Section 2 purposes is not required by federal law. Employers may, but are not required to, photocopy the document(s) presented by the new hire when completing the Form I-9.4 Thus, this new Florida law adds requirements that are not part of federal law.
A question that presents itself is whether, by complying with Florida law and copying and retaining the documents, employers are engaging in a discriminatory practice? The answer turns on the fact that it is required by state law and also whether the practice is applied in a non-discriminatory and consistent manner.