Florida is cracking down on unauthorized workers, and businesses are being pulled in. Hector A. Chichoni and Ellen Gilmore of Greenspoon Marder explain the Sunshine State’s new employee verification requirements and just how bad it can get if a company finds itself on the wrong side of an audit.
As immigration policy and workplace enforcement continue to tighten across the US, Florida has positioned itself at the forefront of aggressive state-level enforcement.
Under Florida law, private employers with 25 or more employees and all public agencies are legally required to utilize the federal E-Verify system to confirm the employment eligibility of all new hires.
Crucially, this mandate is intricately tied to corporate tax obligations. The Florida Department of Revenue (FDOR) plays a central, administrative role in tracking this compliance through the state’s reemployment tax framework. While other agencies handle penal enforcement, FDOR serves as the primary gateway for identifying noncompliant businesses. Understanding the interplay between E-Verify usage, annual tax certifications and state revenue department audits is essential for any business operating in Florida.
Legal requirements
The Florida E-Verify law places strict operational timelines and record-keeping burdens on covered entities.
- The 25-employee threshold: Private businesses must begin using E-Verify the moment they hire a worker to bring their total headcount in Florida to 25 or more. While recent legislative efforts attempted to expand this mandate to all private employers regardless of size, those bills failed to pass, leaving the 25-employee threshold firmly intact.
- The three-day rule: Employers must verify a new hire’s employment eligibility within three business days of the employee’s first day of work for pay.
- System downtime exceptions: If the federal E-Verify system is down or inaccessible, employers are required by law to document the outage by taking daily screenshots illustrating the lack of access. During this time, they must utilize the standard federal Form I-9 protocol.
- Document retention: Employers must retain copies of all documents relied upon during the E-Verify and Form I-9 processes along with the official verifications generated by the system for a minimum of 3 years.
The Florida Department of Revenue does not directly enforce workplace immigration status, but it serves as the data-collection and compliance gatekeeper.
Under the statute, every covered employer must certify its compliance with the E-Verify law annually on its first Florida reemployment tax return of the calendar year. For the vast majority of employers, this means the certification must be filed alongside their Q1 return, making the typical deadline April 30.
The rules for tax certification require an authorized signatory, and the certification cannot be delegated to third-party payroll providers or common tax agents. It must be completed and signed by an individual owner, a corporate officer, partner or a managing member.
Employee leasing companies hold the default responsibility for certifying the eligibility of a client company’s new hires. However, this responsibility can be legally transferred to the client company via a formal agreement.
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Read moreDetailsThe reemployment tax audit process
Because E-Verify compliance is hard-coded into Florida’s tax infrastructure, it is a key focus during routine Florida reemployment tax audits. When an FDOR auditor reviews an employer’s books to evaluate wage reporting and tax accuracy, they cross-reference the annual E-Verify certifications against actual hiring dates, quarterly payroll spikes and Form I-9 documentation.
What to expect during an audit
- The auditor’s request: The FDOR will issue a formal request for all work records, payroll logs and I-9/E-Verify documentation for the audit period.
- Consequences of non-production: Failing to produce the requested compliance records triggers harsh tax penalties. Non-production results in the immediate loss of the business’s “earned tax rate” and forces the assignment of the standard 5.4% tax rate until the quarter after the records are successfully produced.
- Audit adjustments: If discrepancies are found regarding employee classifications or missing verification records, FDOR will issue a notice of intent to make audit changes (Form RT-FL11F). Employers have 30 days to protest or request a local conference before a final notice of proposed assessment is rendered. If the issues cannot be resolved at that level, a notice of proposed assessment is issued. An employer must then file a formal written protest within 60 days to prevent the tax assessment from becoming a final judgment
- Discrepancy extensions: If a reemployment tax audit uncovers systematic issues, the state can extend the audit on a year-to-year basis for up to five years, which is greater than the normal three-year lookback period for FDOR audits.
Multi-agency enforcement and severe penalties
While the FDOR flags noncompliance through its tax return system, it reports violations to enforcement bodies such as the Florida Department of Commerce (formerly the DEO) and the Florida Department of Law Enforcement, which are empowered to conduct targeted and random audits.
The civil and financial exposure for failing to maintain compliance can quickly devastate a business:
- First offense: The Florida Department of Commerce issues a formal notice. The business is granted a 30-day grace period to cure the noncompliance.
- Three violations in a 24-month period: A mandatory civil fine of $1,000 per day begins accruing and will continue until sufficient proof of compliance is provided.
- Egregious or uncured violations: Constitutes legal grounds for the immediate suspension or total revocation of all state-issued business licenses.
Furthermore, the law carries criminal undertones for workers: It is a third-degree felony in Florida for an unauthorized individual to knowingly use false identification documents to bypass these verification checks.
Compliance checklist for Florida employers
To mitigate the risk of an unfavorable FDOR audit or state enforcement action, businesses should establish a rigid compliance protocol:
- Conduct regular internal I-9 audits: Periodically review Form I-9s and corresponding E-Verify receipts to ensure no new hire from July 1, 2023, onward was omitted.
- Sync HR and payroll timelines: Ensure that HR completes the E-Verify step within the required three-day window to prevent discrepancies in the quarterly reemployment tax logs.
- Isolate outage records: Create a dedicated digital folder for E-Verify system downtime screenshots so that “unverified” employees during those specific windows can be legally accounted for.
- Take ownership of tax filing: Ensure a principal officer is prepared to personally sign off on the E-Verify certification statement when filing the first reemployment tax return of the year, rather than assuming a third-party accountant will handle it.
Hector A. Chichoni
Ellen Gilmore
