On September 28, 2021, Florida Governor Ron DeSantis issued Executive Order Number 21-223 ("the Order"). The Order takes aim at the Biden Administration's current response to the influx of migrants seeking - and obtaining - entry into the United States through the southern border. While the Order is largely aimed at the collection of data by Florida authorities on issues related to migrants who have entered through the southern border and either settled in or transited through Florida, it does have the potential to impact employers.

The Order calls on the Commissioner of the Florida Department of Law Enforcement, "in consultation with the Attorney General" to "conduct regular audits of companies doing business in ... Florida ... to ensure compliance with Section 448.095(3)" of the Florida Statutes.² The Order calls for the Commissioner to "prioritize audits of publicly traded corporations or companies with more than 200 employees that operate in sectors of the economy known for employing illegal aliens."³

Section 448.095(3) requires private employers to verify the employment eligibility of every newly-hired employee hired and every contract employee whose contract is renewed or extended after January 1, 2021.⁴ An employer must verify employment by either: (1) using the federal E-Verify system; or (2) retaining a copy of the documentation required by the Form I-9 for at least three years after the employee's initial date of employment.⁵

Compliance with Section (3)(b) "creates a rebuttable presumption that the private employer did not knowingly hire an unauthorized alien."⁶ Compliance also creates a safe harbor from criminal or civil liability "under state law for hiring, continuing to employ, or refusing to hire an unauthorized alien if the information obtained ... indicates that the person's work authorization status was not that of an unauthorized alien."⁷

The law sets harsh penalties for lack of compliance, including requiring "the private employer to provide an affidavit to the Department [of Law Enforcement] stating that the private employer will comply with paragraph (b), the private employer has terminated the employment of all unauthorized aliens in this state, and the employer will not intentionally or knowingly employ an unauthorized alien in this state."⁸ If this is not completed within 30 days, "the appropriate licensing agency shall suspend all applicable licenses held by the private employer until the private employer provides the department with the required affidavit."⁹ A third offense within 36 months results in permanent revocation of "all licenses that are held by the private employer specific to the business location where the unauthorized alien performed work." Further, "[i]f the private employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the private employer's business in general, the appropriate licensing agency shall permanently revoke all licenses that are held by the private employer at the private employer's primary place of business."¹⁰

With increased auditing and enforcement, more cases are sure to follow and Truescreen will continue monitoring the situation.

Posted: October 5, 2021

¹ This memorandum is being provided as a service to our clients. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel.

² See Executive Order No. 21-223 (signed September 28, 2021) at Section 9.

³ Id.

⁴ See FL. Stat. § 448.095(3).

⁵ Id. at (3)(b).

⁶ Id. at (3)(d).

⁷ Id. at (3)(c).

⁸ Id. at (3)(f).

⁹ Id.

¹⁰ Id. at (3)(g).