Q&A of the Day – Is Hiring Day Laborers Illegal in Florida?
Each day I feature a listener question sent by one of these methods.
Email: brianmudd@iheartmedia.com
Social: @brianmuddradio
iHeartRadio: Use the Talkback feature – the microphone button on our station’s page in the iHeart app.
Today’s Entry: @brianmuddradio I heard you say something about day laborers now being illegal. Can you explain?
Bottom Line: Today’s question is on the back of Governor DeSantis’ signing of the Immigration bill last Wednesday which introduces a host of new policies aimed at curbing illegal immigration. As of July 1st, E-Verify will become mandatory for all employers with 25 or more employees. That’s where the majority of the focus has been when the new law has been covered in state and local news media...however there’s much more to the legislation. Employers which knowingly hire illegal immigrants will face the suspension of their business license. The law also invalidates IDs issued to those lacking legal status from other state and local governments while also raising the penalties for human smuggling, including the transporting of illegal immigrants, to a second-degree felony. And it’s on that note that I mentioned the potential for stakes to be raised for people who pick up undocumented day laborers.
The new immigration law is already law in Florida as it became effective immediately upon having been signed by the governor. Totaling 43 pages, there’s a lot to it. Specific to the question of day laborers, what caught my attention was the language surrounding the transporting of illegal immigrants – along with the language and increased stakes for businesses which knowingly employ illegal immigrants. Let’s start with the language specific to employment (this can be found on page 11):
- It shall be unlawful for any person to knowingly to employ, hire, recruit, or refer, either for herself or himself or on behalf of another, for private or public employment within this state, an alien who is not duly authorized to work by the immigration laws of the United States, or the Attorney General of the United States, or the United States Secretary of the Department of Homeland Security.
That’s pretty clear right? It’s illegal for any person to knowingly “employ, hire or recruit” an illegal immigrant. That squarely could place anyone who uses undocumented day laborers in the crosshairs of the law. The only place where there’s subjectivity is the use of the term “knowingly”. I suppose if one were charged with employing illegal day laborers, one could attempt to use the excuse of not having done it “knowingly”. However, for anyone who operates a business, plausible deniability wouldn’t be an option. That’s because it’s always been illegal for businesses/professionals to hire unreported employees.
Under federal law since 2011, day laborers are to be considered independent contractors and all payments to these independent contractors are to be documented as part of one’s business records. Clearly illegal immigrants hanging outside of home improvement stores aren’t being hired as legally licensed independent contractors which takes us to another important point - the considerations for those operating businesses within Florida who pick up illegal day laborers. This practice of hiring day laborers without proper documentation is a violation of both state and federal law and if caught could lead to issues with both levels of government. And that takes us to another key cog in the new law – the potential suspension of business licenses. As the law states:
- If the Department of Economic Opportunity finds or is notified by an entity that an employer has knowingly employed an unauthorized alien without verifying the employment eligibility of such person, the department must enter an order pursuant to chapter making such determination and require repayment of any economic development incentive pursuant to s. 288.061 For a violation of this section, the department shall place the employer on probation for a 1-year period and require that the employer report quarterly to the department to demonstrate compliance with the requirements of subsection. Any violation of this section which takes place within 24 months after a previous violation constitutes grounds for the suspension or revocation of all licenses issued by a licensing agency.
The law specifically outlines the definition of contractor under state law and makes it clear that the law applies to them. Again, the practice of under-the-table deals with undocumented day laborers has always been illegal, however now the state specifically has defined the practice with consequences for violations. And that’s all independent of use of the E-Verify system which is mandatory for employers with 25 or more employees as part of the law. And finally, there’s the human smuggling provision of the new law. The language states:
- A person who knowingly and willfully transports into this state an individual whom who the person knows, or reasonably should know, has entered is illegally entering the United States in violation of law and has not been inspected by the Federal Government since his or her unlawful entry from another country commits a felony
For most who’d consider using day laborers in South Florida, this would likely be a lessor concern, however, if one is caught transporting an illegal immigrant what would the argument be if questioned by law enforcement. I was only illegally hiring them to work for me, I wasn’t smuggling them into Florida? The point is that it’s a tangled web at that point. And the big picture takeaway is that the hiring of illegal immigrants already was illegal. However now it’s a point of emphasis within the state with teeth behind the law. And state charges could lead to federal detection and federal charges. There’s a right and a wrong way to go about hiring day laborers. The risks have been raised for those who go about it the wrong way.