On January 4, 2011, Florida’s newly elected Governor, Rick Scott, signed several executive orders including Executive Order 11- 02, that requires all state agencies to use the U.S. Department of Homeland Security’s E-Verify system. Pursuant to the Executive Order, all state agencies under the direction of the Governor must immediately begin using the E-Verify system to verify employment eligibility of their current and prospective employees. Additionally, state agencies under the direction of the Governor must include in all state contracts a requirement that contractors utilize the E-Verify system to verify the employment eligibility of: (1) all persons employed during the contract term by the contractor to perform employment duties within Florida and (2) all persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency. Finally, the Executive Order encourages state agencies not under the direction of the Governor to verify the employment eligibility of their current and prospective employees utilizing the E-Verify system, and to require contractors to utilize the E-Verify system to verify the employment eligibility of their employees and subcontractors.

The Executive Order may face legal challenges because it requires employers to E-Verify the employment eligibility of “current and prospective employees.” However, E-Verify can only be used to verify the employment eligibility of new hires, with the exception being federal contractors with the Federal Acquisition Regulation clause.

Smith, Gambrell & Russell, LLP will monitor any challenges to the Executive Order and will report on any decisions as they develop. To learn more about E-Verify and the requirements of the Executive Order, or if you have any questions regarding this topic, contact your employment counsel at Smith, Gambrell & Russell, LLP.