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.
   10  Be It Proposed by the Constitution Revision Commission of
   11  Florida:
   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.