By Daniel Ross
Last month, Florida Governor Ron DeSantis signed into state law the self-described “strongest anti-illegal immigration legislation in the country.”
Under the new statute–the bulk of which goes into effect on July 1–business owners with 25 or more employees must use E-Verify to confirm the immigration status of new hires, and be subjected to enforceable penalties for employing undocumented workers, as well as stricter penalties for sending undocumented workers across state lines to work in Florida, among other provisions.
When enforced, the new stringent laws are highly likely to impact everyone in the industry from trainers, farm managers, and the workers themselves. The TDN reached out to several stakeholders either based in Florida or who regularly race there. Some were unaware of the new law, while others downplayed its impacts.
According to Julio Rubio, backstretch services coordinator and Hispanic liaison for the Kentucky Horsemen's Benevolent and Protective Association, an unusual amount of backstretch workers have recently come to Kentucky from Florida.
Rubio has also fielded calls from trainers in Florida who have already lost employees. “Some of them left for South Carolina. Illinois. They're just getting out of there,” Rubio said.
Immigration experts warn that the bill contains key provisions that employers should be aware of if they're planning to do business in Florida.
According to Will Velie, an immigration attorney with many clients in the racing industry, what is startling about the bill is that it co-opts state governmental agencies into enforcing federal immigration laws.
“The state is creating its own role in this which is unprecedented,” Velie said. “This is by far the biggest incursion of state law into the federal immigration domain.”
For trainers shipping horses into Florida to race from out of state, a notable provision under Senate Bill 1718 is the criminalization of “knowingly or willingly” sending into Florida an undocumented individual across state lines–what could amount to a state felony.
According to Albany-based immigration attorney, Leonard D'Arrigo, of the law firm Harris Beach, the language of the bill is frustratingly vague. For example, the bill states that the employer would only be at risk of prosecution if they know, or “reasonably” should have known, that the employee is undocumented. Nevertheless, he recommends that employers take nothing for granted.
“You have to be thinking about, 'who are we driving into the state if they get pulled over by the police and asked for documentation to prove legal status?'” said D'Arrigo. “If they're unable to prove legal status, there's liability–the employer could ultimately be responsible.”
Another key change is that employers with 25 or more employees must now use the electronic employment verification system, E-Verify, to check the immigration status for all new employees. If the system red-flags the individual as undocumented, then the business employs that person at its own risk.
Importantly, an employer must retain a copy of the documents used by an employee to prove their immigrations status, along with the official verification generated by E-Verify, for at least three years.
This requirement for employers is important. The bill authorizes the state to request any copies of documents used for employment verification purposes from business owners. And come July 1 next year, state law enforcement will be able to perform audits of businesses it believes isn't following E-Verify requirements.
According to D'Arrigo, the added layer of paperwork from E-Verify will likely hamper hiring practices for trainers and farm owners in Florida. This is a state where 25% of the workforce are immigrants, and where about 65% of agricultural and equine-related jobs are filled by immigrant workers.
“They've been getting by for years without this additional scrutiny,” said D'Arrigo, of the current system whereby immigrant workers present “I-9 documentation” to illustrate proof of work status–what often proves a “good faith” arrangement.
“Now, employers are going to know immediately whether those documents are fake or whether they're real,” D'Arrigo said, who emphasized how the new E-Verify requirements only apply to new hires.
The possible sanctions aren't exactly chump change.
For employers who fail to use E-Verify as required three times in any 24-month period, for example, the state can impose fines of $1,000 a day “until the employer provides sufficient proof to the department that the noncompliance is cured.”
Furthermore, the new law also creates incrementally more serious violation sanctions to business owners pinned to the number of undocumented workers employed there and frequency of violations, said D'Arrigo. In a worst-case scenario, the employer could lose their state business license.
At the same time, a worker found to use false identification to gain employment faces a possible $5,000 fine and a five-year prison sentence.
While the new E-Verify requirements apply only to companies with 25 or more employees, D'Arrigo cautions for smaller businesses and their workers to be mindful in other ways.
Trainers and farm owners near the 25-employee cut off need to be vigilant if they exceed that threshold at any time, as this will dramatically affect their hiring practices.
Another important wrinkle in the new immigration landscape in Florida concerns the ability to legally take to the road. According to D'Arrigo, the state Department of Motor Vehicles is expected to maintain a list of drivers' licenses that other states issue to undocumented individuals. Why is this important?
The new law bars counties and municipalities from issuing identification documents like drivers' licenses to individuals unable to prove their legal immigration status. At the same time, Florida law enforcement officers will be ordered to issue citations to anyone using one of the out-of-state licenses listed by the DMV who is unable to prove legal immigration status, said D'Arrigo.
“It's only going to come up if somebody gets pulled over in the normal course of a traffic violation. At that point, the law enforcement officer is directed, if it's one of those out-of-state licenses, to ensure that the person is legally in the U.S.,” said D'Arrigo. “If not, they're to issue them a citation.”
Then comes the issue of workplace injuries. “If somebody gets injured at the track and they're undocumented, they can usually get emergency aid,” said D'Arrigo.
As of July 1, Florida hospitals accepting Medicaid are required to collect patient immigration information on administration or registration forms. These same hospitals are also required to provide a caveat on forms stating that the response will not affect patient care or result in a referral to the immigration authorities. But that's still not enough to allay workers' fears, warned D'Arrigo.
“Although the law says that they cannot share that information, it's still possible it will be shared nonetheless, and potentially transmitted to immigration authorities,” said D'Arrigo. “So, [undocumented] workers are now going to be hesitant to get the medical care that they need because they're going to be fearful from being on the record.”
For Velie, the most chilling provision in the law is that it opens the door for individuals to report to the authorities a “good faith” belief that certain employees are unauthorized. Such a report would require the Florida Department of Economic Development to investigate the complaint–a new dynamic that is likely to generate a “climate of fear” among businesses and immigrant workers, said Velie.
“If I'm [someone looking to make trouble], all I have to do is say with a good faith belief that there's somebody employed without authorization [on the backstretch], and the Florida Department of Economic Development has to investigate,” said Velie. “If somebody's just bent on causing problems, they've got a good way to do that.”
When asked about the immigration climate in Florida, Tom Rooney, National Thoroughbred Racing Association (NTRA) president and CEO, pointed to the H-2B guest worker program as a labor safety net.
Because of the sheer demand for H2-B visas and the limited supply, however, it's unlikely to prove an adequate fix to Florida's immigrant labor gaps.
“The National Thoroughbred Racing Association has long advocated on the Federal level for solutions for the industry, like a permanent returning worker exemption, and will continue to do so,” wrote Rooney in an email, pointing to long-identified problems with the H-2B system.
“For those trainers with over 25 employees for which this law applies we will continue to work diligently at the federal level with our partners in the H-2B Coalition to push for more workers to help fill the need,” Rooney added.