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Florida’s New Mandatory E-Verify Law Will Require Changes To Hiring Practices In the New Year

December 21 - Posted at 10:00 AM Tagged: , , , , ,

Beginning on January 1, 2021, Florida’s new “Verification of Employment Eligibility” statute will require many employers to use the federal E-Verify system before hiring any new employees. This new law could force significant changes to your hiring practices. What do Florida employers need to know about this significant development?

Legislative Background And Campaign Promises

E-Verify was introduced by the U.S. Department of Homeland Security in partnership with the Social Security Administration as a voluntary program. However, many employers in Florida will soon be faced with mandatory implementation of the web-based system to confirm employment eligibility for new hires.

Under preexisting federal law, all employers are required to complete an I-9 Employment Eligibility Verification form for each new employee to verify the identity and eligibility of that employee to work in the United States. Since its inception in 1996, most states have also encouraged voluntary participation in the federal government’s E-Verify program, which compares information supplied by an employer from its Form I-9 to information available to the federal government from various databases. Only nine states require E-Verify for all employers.

Since 2011, E-Verify has been required on all state projects in Florida. However, following a nationwide trend of growing support for the federal employment verification system, Governor Ron DeSantis signed Florida Senate Bill 664 on June 30, requiring all public employers – as well certain private employers – to use E-Verify beginning January 1, 2021.

As a gubernatorial candidate in 2018, DeSantis vowed to mandate the use of E-Verify among all employers in the state. This was controversial and opposed not only by some immigrant advocacy groups, but also by business groups — especially those in agriculture, construction, and hospitality. Following Governor DeSantis’ signing of the bill, a spokesperson explained, “Given the high unemployment rate due to COVID-19, it is more important than ever to ensure that the state’s legal residents benefit from jobs that become available as Florida continue to reopen in a safe and smart manner.” While the measure expands the use of E-Verify, Florida does not join the states that require use of the system in hiring practices for all employers. 

What Does the New Law Require?

There are varying obligations for employers depending on whether they are public or private, and whether they contract with the state or receive certain state incentives.

Public Employers And Private Employers Who Contract With The State Or Receive State Incentives

Once in effect, every Florida public employer, along with their private contractors and subcontractors, must enroll in and use the E-Verify system to confirm the eligibility of all employees hired after January 1, 2021. No public contract can be entered into without an E-Verify certificate.

Any contractor who hires a sub must require an affidavit stating that they don’t employ, contract with, or subcontract with any unauthorized immigrants. Importantly, this affidavit provides for all newly hired employees, not just those working on government contracts. This affidavit must be kept by the general contractor for the duration of the contract and all contractors will need to go through this process for each public project.

If a public employer has a good faith belief that these requirements have been knowingly violated, it can terminate the contract, without liability for breach of contract, or demand that its contractor terminate any noncompliant subcontractors. Terminations for purported violations of these requirements may be challenged in court within 20 days of the date of termination. However, if the contractor is in fact found guilty, the contractor will be barred from public contracting for at least a year after termination and may be held liable for any additional costs associated with the termination.

In addition to private employers who contract with public entities, these new E-Verify employment eligibility requirements will also apply to employers who receive taxpayer-funded incentives through the state Department of Economic Opportunity. Beginning on January 1, 2021, the DEO will not approve an economic development incentive application unless the application includes proof that the applicant business is registered with and uses the E-Verify system in the eligibility verification process for all newly hired employees. Should the DEO make a final determination that an awardee has failed to be compliant, the employer will be forced to repay all moneys received by the DEO as an economic incentive.

E-Verify For All Other Private Employers

For private employers who do not contract with the state or receive state incentives, Florida law will now require these private employers to use E-Verify, or alternatively use the Form I-9 and maintain copies of the documents used to complete the Form for three years (which is optional under federal law). If the E-Verify certificate or Form I-9 documentation is requested by certain parties (such as the State Attorney, Attorney General, Department of Law Enforcement, etc.), the employer must provide them with proof of the employee’s eligibility.

Private employers accused of non-compliance will be provided notice from the DEO and the employer must terminate any unauthorized employees, begin complying with the legal procedures, and respond with an affidavit of compliance within 30 days. Failure to do so risks potential suspension of existing licenses until the employer provides such an affidavit. If an employer fails to properly respond to a DEO notice three times in any 36-month period, it could permanently lose its business licenses and may be liable for additional civil or criminal liabilities.

The E-Verify requirements will also go into effect for the private sector on January 1, 2021. This new law will not apply to any employees that were hired before then. However, any existing employment contracts that need to be renewed or extended after that date will be required to go through the verification process without going through the E-Verify process.

Ensuring Compliance Readiness Is The Next Step for Employers

Public employers in Florida and those who bid on contracts with the state should be ready to comply with the new law by updating their onboarding and new hire practices. Private employers who choose not to use E-Verify should continue to complete and maintain Form I-9 verification records, including copies of the documents that were reviewed. The enforcement procedures under the new E-Verify mandate are significant, and failure to comply can seriously impact your ability to do business within the state.

Notably, government scrutiny of employment verification records at both the state and federal level has the potential to increase when the COVID-19 pandemic subsides. You can prepare for government reviews by periodically auditing your employment verification records to ensure you have been completed fully and properly.

FAQs For Employers Navigating Relaxed I-9 Verification Requirements

April 28 - Posted at 10:00 AM Tagged: , , , , ,

Although the Department of Homeland Security (DHS) recently relaxed I-9 requirements for employers operating remotely as a result of the COVID-19 crisis, employers are still left with some questions on how to meet their obligations in this uncertain time. 

The Basics: What Are The New Rules?

Under federal guidance, employers are temporarily no longer be required to review an employee’s identity and work authorization documents in the employee’s physical presence.  Instead, inspection of these documents can be conducted remotely (e.g., by video, fax, or email).  

According to the U.S. Citizenship and Immigration Services (USCIS), “if employers are performing inspections remotely (e.g., over video link, fax or email, etc.) they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In addition to completing Section 2, Employers also should enter ‘COVID-19’ in the Additional Information field.”

Then, when “normal operations resume,” all employees whose documents were presented via remote verification must, within three business days, undergo the required “in-person” examination of documents. The person conducting the physical examination should write the words “documents physically examined” in the Additional Information box in Section 2, and should include their name and the date of inspection.  

It is important to keep in mind that the DHS’s relaxed requirements apply only to employers who are operating remotely. According to the guidance, if there are employees physically present at a work location, then you must follow the normal in-person physical inspection rules. However, if newly hired employees or existing employees of an employer who still has employees present at a work location are subject to COVID-19 quarantine or lockdown protocols, “DHS will evaluate this on a case-by-case basis.”

Frequently Asked Questions About The New I-9 Guidance

While employers appreciate the DHS’s temporary relaxation of the in-person document inspection rules, some questions are not addressed by either DHS or USCIS. Here are the most common questions we have seen and the best practices to follow.

  1. How is an employee expected to fill out Section 1?
    The announcement makes clear that employees are still required to fill out their section (Section 1) of the I-9 no later than the first day of employment. But DHS’s announcement is silent on how employees will complete Section 1 of the I-9 if they are operating remotely.

    You can presumably email the Form I-9 to the employee, have the employee complete Section 1, sign, date, scan and email the completed Section 1 back to you. For employees without a home printer and/or scanner, you should consider having them provide Section 1 in the same way they provided their documents (by video, smart phone photo, fax or other electronic method).

    Once operations resume, the employee should bring the original signed Section 1 to your worksite.

  2. If we have a policy of not keeping copies of documents presented as part of the I-9 process, what should we do with our copies of the remotely provided documents after the in-person inspection occurs?
    As noted, the announcement clearly requires employers conducting remote document reviews to keep copies of the documents provided to them (for example, by taking screen shots, pictures of the documents by camera phone, and other methods). But the announcement is silent as to what you should do with those electronic copies of documents after the in-person document review, in the event you do not, as a policy, keep copies of documents submitted as part of the I-9 process.

    The safest course of action is to print out the electronic copies of documents received remotely. But instead of keeping them with the employee’s I-9, keep them in a separate file until DHS clarifies what should be done with them.

  3. Is the employee required to bring in hard copies of the same documents they provided remotely?
    The government has made it clear that you are not supposed to request or even suggest that employees provide any specific document or documents when filling out a Form I-9. Here, the announcement seems to assume employees will bring in for inspection the same document or documents they provided remotely, but does not specifically say so. 

    Because the employee has already made their choice of documents when they provided them remotely, DHS may find it reasonable for you to ask to see hard copies of the same document(s). If the employee refuses or has lost one or more of those document(s), you may consider filling out a new Section 2 and attaching it to the original Section 2, with a brief explanation in the Additional Information field.

  4. What triggers the determination that “normal operations” have resumed?
    The announcement states that within three business days after you resume “normal operations,” the in-person document review must occur. But what if you implement a partial resumption of operations, scaled back operations, or even just start a test run of operations?  What if you call some of your employees in to your worksite in preparation for returning to normal operations? 

    The recommended approach is to determine if the employee is going to be required to physically come into the office as part of the resumption of operations, whether to attend orientation, pre-employment training, or other reason. If the employee is scheduled to come in to the workplace for only a day or two, or even for only a few hours, you should instruct them to bring their original I-9 document(s) with them, and you should conduct the in-person inspection at that time. 

    In short, rather than bank on an argument that Section 2 was not filled out late because “normal operations” had not yet commenced, you should err on the side of doing the document inspection as early in the process as possible (on a case-by case basis), rather than later.

Florida Governor Issues Safer At Home Order – What Do Businesses Need To Know?

April 02 - Posted at 11:01 AM Tagged: , , , , ,

Florida Governor Ron DeSantis issued a Safer At Home Order for the State of Florida yesterday. It goes into effect just after midnight (at 12:01 am) on the morning of Friday, April 3, 2020, and is set to expire on Thursday, April 30, 2020. The Order limits movement and personal interaction outside of the home to only those necessary to obtain or provide essential services, or to conduct essential activities.

The term “essential services” is defined as and encompasses the list detailed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce. Essential services also include the businesses and activities designated by Florida Executive Order 20-89 and its attachment, which consists of the list propounded by Miami-Dade County Emergency Order 07-20, as amended in multiple orders. Other essential services may be added under the Order and nothing in the Order prohibits individuals from working from home.

Thus, when determining whether your business qualifies as an essential business, you should consult the Department of Homeland Security’s Guidance and Miami-Dade County Emergency Order 07-20 and its amendments. The Order also indicates that a current list of essential services will be maintained on the Florida Department of Health’s website. For purposes of the Order, essential activities also include attending religious services, participating in recreational activities (consistent with social distancing guidelines), taking care of pets, and caring for or otherwise assisting a loved one or friend.

State v. Local Law

Governor DeSantis has taken a gradual approach to social distancing measures related to COVID-19. On March 17th, he ordered all bars and restaurants across the state to discontinue all dine-in service. On March 27th, he ordered all persons who enter the state of Florida after being in New York, New Jersey, and Connecticut to isolate or self-quarantine for two weeks. 

In the meantime, the state’s largest counties, including Miami-Dade, Broward, Palm Beach, Orange, and Hillsborough, issued Stay at Home or Safer at Home orders requiring residents to stay home, with certain exceptions, and ordering all non-essential businesses to close, or cease in-person operations. In some cases, however, these Orders were only limited to those non-essential businesses that could not perform their work in adherence with the Centers for Disease Control guidance regarding social-distancing and other sanitary matters. Miami-Dade’s business closure order went into effect on March 19, while Orange County and Hillsborough followed on March 26 and 27, respectively.

Governor DeSantis’ Order supersedes any order issued by local officials.

 

What Is An Essential Business?

The U.S. Department of Homeland Security Essential Critical Infrastructure Workforce Guidance and Miami-Dade County Emergency Order 07-20 and its amendments include the following as Essential Businesses:

HEALTH CARE OPERATIONS 

  • Research and laboratory services;
  • Hospitals, doctors’ and dentists’ offices, clinics;
  • Walk-in-care/Urgent care health facilities;
  • Veterinary and animal health services;
  • Elder care;
  • Rehabilitation facilities, physical therapists, and therapists;
  • Mental health professionals and psychiatrists;
  • Medical wholesale and distribution;
  • Home health care workers or aides;
  • Nursing homes, or residential health care facilities or congregate care facilities;
  • Medical supplies and equipment providers.

INFRASTRUCTURE, TRANSPORTATION, AND MARINE SERVICES

  • Utilities, including power generation, fuel supply and transmission;
  • Public water and wastewater;
  • Telecommunications and data centers;
  • Airports/Airlines;
  • Taxis;
  • Other private transportation providers providing transportation services via automobile, truck, bus, or train.
  • Transportation infrastructure, such as bus, rail, or for-hire vehicles and garages.
  • Private and municipal marinas;
  • Boat launches;
  • Docking services;
  • Fueling services;
  • Marine supply and other marina services.

MANUFACTURING

  • Food processing, including all foods and beverages;
  • Chemicals;
  • Medical equipment and instruments;
  • Pharmaceuticals;
  • Safety and sanitary products;
  • Telecommunications;
  • Agriculture/Farms;
  • Paper products;
  • Factories;
  • Manufacturing facilities;
  • Bottling plants;
  • Other industrial uses.

RETAIL

  • Grocery stores and supermarkets, including all food and beverage stores;
  • Food banks;
  • Pharmacies;
  • Convenience stores;
  • Farmer’s markets, and farm and produce stands;
  • Gas stations;
  • Restaurants/bars (but only for take-out/delivery);
  • Hardware and building material stores;
  • Other establishments engaged in the retail of food products, pet supply, and such other household consumer products as cleaning and personal care products;
  • Other stores that sell groceries and other non-grocery products, and products necessary to maintaining the safety, sanitations, and essential operations of residents;
  • Businesses that ship or deliver groceries, food, goods, or services directly to residences;
  • Restaurants and other facilities that prepare and serve food, but only for delivery, takeout, or drive-thru services.

SERVICES

  • Trash and waste recycling collection, processing and disposal;
  • Mail and shipping services;
  • Laundromats/dry cleaning;
  • Building cleaning and maintenance;
  • Child care services;
  • Auto repair;
  • Warehouse/distribution and fulfillment;
  • Funeral homes, crematoriums and cemeteries;
  • Storage for essential businesses;
  • Sales of computer or telecommunications devices and the provision of home telecommunications;
  • Legal and accounting services as necessary to assist in compliance with legally mandated activities.

NEWS MEDIA

  • Newspapers;
  • Television;
  • Radio;
  • Other media services.

FINANCIAL INSTITUTIONS

  • Banks and other related financial institutions;
  • Insurance;
  • Payroll;

PROVIDERS OF BASIC NECESSITIES TO ECONOMICALLY DISADVANTAGED POPULATIONS

  • Homeless shelters and congregate care facilities;
  • Food banks;
  • Human services providers whose functions include the direct care of patients;
  • Businesses providing food, shelter, social services, and other necessities of life for economically disadvantaged or otherwise needy individuals.

CONSTRUCTION

  • Skilled trades such as electricians and plumbers;
  • Other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes;
  • Open construction sites, irrespective of the type of building;
  • Architectural services;
  • Engineering services;
  • Land surveying services.

DEFENSE

  • Defense and security-related operations supporting the U.S. Government or a contractor to the U.S. government.

SERVICES NECESSARY TO MAINTAIN THE SAFETY AND ESSENTIAL OPERATIONS OF RESIDENCES OR OTHER ESSENTIAL BUSINESSES

  • Law enforcement;
  • Fire prevention and response;
  • Emergency management and response;
  • Building cleaners or janitors;
  • Local governments.

PET CARE

  • Pet supply stores;
  • Veterinarians;
  • Pet boarding facilities;
  • Animal shelters or animal care or management.

AGRICULTURE

  • Food cultivation, including farming, livestock, and fishing.

AUTOMOBILE AND VEHICLE-RELATED OPERATIONS

  • Gas stations;
  • Auto-supply stores;
  • Auto-repair facilities;
  • New and used automobile dealerships;
    • However, for each of the above, social distancing as advised by the CDC must be practiced.

HARDWARE STORES AND TRADESMEN

  • Hardware stores;
  • Contractors;
  • Appliance repair personnel;
  • Exterminators;
  • Fumigators;
  • Landscaping businesses;
  • Pool care services;
  • Service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures.

EDUCATION

  • Private colleges, trade schools, and technical colleges;
    • However, the above are only deemed essential as needed to facilitate online or distance learning;
  • University, college, or technical college residence halls may also remain open to the extent needed to accommodate students who cannot return to their homes.

LOGISTICS

  • Warehouses;
  • Trucking;
  • Consolidators;

SENIOR CARE

  • Home-based care for seniors or adults;
  • Assisted living facilities;
  • Nursing homes;
  • Adult day care centers;
  • Senior residential facilities.

CHILDCARE

  • Home-based care for children;
  • Childcare facilities providing services that enable employees exempted to work as permitted, subject to group size and spacing restrictions.

OTHER OPERATIONS DEEMED ESSENTIAL

  • Businesses providing mailing and shipping services, including post office boxes;
  • Laundromats, dry cleaners, and laundry service providers;
  • Businesses that supply office products needed for people to work from home;
  • Businesses that supply other essential businesses with the support or supplies necessary to operate, and which do not interact with the general public;
  • Businesses operating at any airport, seaport, or other government facility, including parks and government offices;
  • Office space and administrative support necessary to perform exempted essential activities;
  • Businesses providing propane or natural gas;
  • Mortuaries, funeral homes, and cemeteries;
  • Firearm and ammunition supply stores;
  • Businesses providing services to any local, state, or Federal government, including municipalities, pursuant to a contract with such government;
  • Any business that is interacting with customers solely through electronic or telephonic means, and delivering products via mailing, shipping, or delivery services.

What Does This Mean For Employers?

Employers with operations in Florida should review the CISA guidance and Miami-Dade County Emergency Order 07-20, and its amendments, to determine if they are deemed non-essential and must close beginning on April 3, 2020 at 12:01 am. 

Employers should also be prepared to address concerns from older employees and employees with underlying significant health conditions regarding whether or not they must come in to work. Employers should also carefully assess the availability of telework for these employees, as the availability of telework has significant implications for whether they are entitled to paid leave.

We will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate.

E-Verify to Go Dark This Weekend

March 20 - Posted at 6:30 PM Tagged: , , , , , ,

The federal government’s electronic employment verification system will be unavailable this weekend due to system upgrades.

U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify will be shut down from midnight March 23 to 8 a.m. March 26 Eastern Time. E-Verify users are encouraged to complete and close any open cases prior to the system shutdown.

The Department of Homeland Security and the Social Security Administration will not be able to assist employees with case resolution issues during the outage. myE-Verify, the system’s resource portal for workers, will also be unavailable.

“During the suspension, employers will not be able to access their E-Verify accounts and employees will be unable to resolve E-Verify tentative nonconfirmations,” said Michael H. Neifach, an attorney in the Wahington, D.C., regional office of Jackson Lewis. “The E-Verify outage does not change any Form I-9 requirements,” he added. “Form I-9s must be completed no later than three business days after employment.”

To minimize the shutdown’s impact, the agency stipulated:

  • The three-day rule for creating E-Verify cases is suspended for cases affected by the outage. If an employee’s first day occurs between March 20 and March 26, employers will have until March 29 to create an E-Verify case.
  • Workers will have two additional federal working days to resolve tentative nonconfirmations.
  • Workers will have an additional two federal working days from the date listed on their referral date confirmation to contact the agencies.
  • Employers may not take adverse action against an employee because the E-Verify case is in interim case status or during the extended interim case status due to the suspension. Federal contractors with E-Verify clauses should contact their contracting officer to inquire about extending contractor deadlines.

USCIS is prepping for a move to an upgraded user interface later this month. Enhanced features are expected to include a streamlined process for creating and managing cases, modernized data-matching to reduce tentative nonconfirmations, and improved data integrity.

Tips To Prepare Your Company For An I-9 Audit

May 12 - Posted at 2:01 PM Tagged: , , , , ,

The Immigration Customs and Enforcement division (ICE) of the Department of Homeland Security, continues to issue Form I-9 Notices of Inspection to businesses of all sizes across the nation. In fiscal year 2012, ICE served over 3,000 Notices to businesses, resulting in over $12 million in fines. Additionally, ICE made 520 criminal arrests tied to worksite enforcement investigations. These criminal arrests involved 240 individuals who were owners, managers, supervisors, or human resources employees.  

 

The Notices of Inspection allow ICE to inspect employers I-9 forms to determine compliance with employment eligibility-verification laws. Once the Notice of Inspection has been issued, the targeted employer has three days to provide ICE with the company’s I-9 forms to be reviewed. In addition to I-9 forms for current and recently terminated employees, employers will be asked to turn over payroll records, list of current employees, and information about the company’s ownership.

 

Civil penalties for errors on the I-9 form can range from $110 to $1,100 per violation. Civil penalties for knowingly hiring and continuing to employ unauthorized workers range from $375 to $3,200 per violation for first time violations. In determining penalty amounts, ICE considers five factors: 

 


1) The size of the business; 
2) Good-faith efforts to comply; 
3) The seriousness of the violation; 
4) Whether the violation involved unauthorized workers
5) Any history of previous violations. 

 

Here are 12 tips to help protect your company and limit exposure for I-9 violations:

 

1. Make sure you are using the correct I-9 form. U.S. Citizenship and Immigration Services recently released a new version of the I-9 form. Beginning May 7, 2013 only the 03/08/13 version of the I-9 form will be accepted. 

 

2. Have employees complete the form in a timely manner.  For a new hire, the employee must complete Section 1 before starting work on the first day.  You must complete Section 2 and the Certification by the end of the third business day.

 

3. Ensure that the Preparer/Translator Section is completed if the employee received assistance completing Section 1 of the I-9 form.

 

4. Don’t accept any expired documents.

 

5. Avoid discrimination or document abuse. When completing the I-9 process, do not require the employee to provide specific documents or more documents than minimally required. 

 

6. Don’t play detective. If a document presented by the employee is on the List of Acceptable Documents, reasonably appears to be genuine, and relates to the person presenting it, you may accept that document to complete Section 2 of the I-9 form.

 

7. Re-verify expiring work-authorization documents before they expire and do not allow any employee to continue to work after a work-authorization document expires.   

 

8.Don’t re-verify U.S. passports or passport cards, Permanent Resident Cards, or List B Identity documents.

 

9. Keep I-9 forms in a separate binder for current employees and another for terminated employees. Do not keep I-9 forms in employee personnel files.

 

10. Train the individuals in your company who complete the I-9 process.

 

11. Conduct self-audits. Correctable errors on the I-9 form should be fixed, the change should be initialed and dated, and the words “Per Self Audit” should be placed beside the correction.

 

12. Know your rights. If ICE appears to review your I-9 forms and conduct an audit, insist on a written Notice of Inspection and your right to have three business days before you turn over your original I-9 forms.

 

It’s clear from recent events that ICE will continue auditing employers’ I-9 forms to ensure that all employers are complying with immigration laws. Creating a culture of compliance and auditing your company’s forms is the best way to prepare your company for an ICE I-9 audit.

 

Please contact our office regarding any questions that you may have on performing an I-9s or how to perform an I-9 audit.

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