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FRSA LEGAL COUNSEL Cotney Construction Law

Florida’s New Employment Verification Law for the Construction Industry Rick Blystone & Paul Messina, Attorneys, Cotney Construction Law The Florida Legislature recently passed a new law that changes how employers must account for their employees’ eligibility to work in the United States. This new law was signed by Governor Ron DeSantis on June 30, 2020, with an effective date of July 1, 2020. However, the part of the law that is the subject of this article does not go into effect until January 1, 2021. The new law has several provisions that will affect contractors doing business in the state of Florida which center around the employment eligibility of their workforce. Before getting into that, it is important to understand how the law defines a few different groups.

subcontractor is required to provide an affidavit to the contractor stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien—a statement which, if untrue, could have profound legal consequences. While prime contractors working on non-public projects are required by the statute to verify employment eligibility of its ■ A contractor is defined as a person or entity workers, as private emthat has entered or is attempting to enter into a ployers, they can choose contract with a public employer to provide labor, supplies or services to such employer in exchange to either register with and use E-Verify or keep for salary, wages or other remuneration. using Form I-9 to verify ■ A public employer is defined as an entity within employment eligibility. The state, regional, county, local or municipal governstatute adds an additional ment, whether executive, judicial or legislative, requirement when solely or any public school, community college or state using Form I-9, however, university that employs persons who perform as compared to the fedlabor or services for that employer in exchange eral regulations. Under for salary, wages or other remuneration or that the statute, the employer enters or attempts to enter into a contract with a will be required to retain contractor. copies of the documents ■ A subcontractor is defined as a person or entity presented to the employer that provides labor, supplies or services to or for a by the employee as part of the I-9 process, whereas contractor or another subcontractor in exchange federal regulations do not require employers to do so. for salary, wages or other remuneration. The statute further mandates that each party has a statutory duty to terminate any contracts where it has ■ A private employer is defined as a person or entity a good faith belief that another party has knowingly that transacts business in Florida, has a license employed, hired, recruited or referred for employment issued by an agency and employs persons to peran alien who is not duly authorized to work in the form labor or services in this state in exchange for United States. Any such contracts terminated under salary, wages or other remuneration. this provision of the law will not constitute a breach Under the new law, every public employer, contracof contract. This is intended to bar these types of tor, and subcontractor will be required to use E-Verify breach of contract lawsuits. Further, the law provides for all newly hired employees after January 1, 2021 for the opportunity to challenge the termination of the and are prohibited from entering into construction contract, so long as it is filed within 20 calendar days contracts unless each party to the contract is regisof the termination with a circuit or county court. If a tered with E-Verify. Thus, for public projects, all prime contractor has its contract terminated with a public contractors and subcontractors will be required to employer under this provision, it will be barred for one use E-Verify. Additionally, for public projects, each year from being awarded a public contract and the 6

FLORIDA ROOFING | November 2020

Profile for Florida Roofing Magazine

November 2020