PolitiFact FL: Do new state employment rules affect agricultural workers?
Florida agriculture and construction companies are reporting worker shortages following the July 1 implementation of a strict new immigration law.
In the month before the law took effect, Republican lawmakers who had supported the bill tried to quell fears and prevent a mass worker exodus.
"This bill is 100% supposed to scare you," Republican Rep. Rick Roth, who voted in favor of the bill, said during a June 5 meeting organized by the Hispanic Ministers Association of South Florida. "This is more of a political bill than it is policy."
After the meeting, Roth was interviewed by Adriana Carrera, founder of La Familia de Broward, an online Spanish-language magazine. A clip of the interview went viral when tweeted by Thomas Kennedy, a Democratic activist.
"The season is over now in South Florida," Roth said. "You can leave here and come back next season in November. We believe the law is only referring to permanent employees, not seasonal."
Gets worse. Rep. Roth says the anti-immigrant law affects “permanent” employees and not “seasonal” ones, making the lives of immigrants who live in Florida hell. He says they will “have more info by September” regarding this destructive bill they already voted for. Unbelievable. https://t.co/2EQEzOTiJK pic.twitter.com/9iM2ja4A11— Thomas Kennedy (@tomaskenn) June 6, 2023
Roth didn't clarify what he meant by seasonal employees, though his statement appeared to be directed at agricultural workers. Roth did not respond to our request for comment.
The new immigration law includes penalties for employers who hire people who aren’t legally authorized to work in the U.S. Experts told us some of the new law’s employment provisions apply to all workers, including seasonal and agricultural employees, even though those workers are not specifically mentioned in the law. One provision applies only to people in "permanent positions," but the law does not define what those are, so courts could be left to decide whether that includes seasonal workers.
The Florida Policy Institute, a center-left think tank, said 391,000 people in the country illegally worked in six major Florida industries, including agriculture and construction, in 2019, the most recent year with available data.
Employment provisions in the new law
Under the new law, S,B, 1718, any private employer with 25 or more employees must vet new permanent employees using E-Verify, a federal system that checks a national database to confirm whether someone is legally authorized to work in the U.S.
Florida’s public agencies and private businesses that have contracts with the state were already required to use the system. Certain federal contractors and subcontractors have also been required for decades to use E-Verify.
Under Florida’s previous verification process, private employers relied on employees to provide documents proving they were legally authorized to work in the U.S., said Ira Kurzban, a Florida immigration attorney.
Employees would fill out an I-9 employment verification form, and if the supporting documents appeared to be valid, employers needed to take no further action. Employees would sometimes "present valid looking but fraudulent documents to get by," said Kurzban.
The new law’s E-Verify provision is designed to weed out people in the U.S. illegally and prevent them from getting jobs, Kurzban said. The Florida Policy Institute said the database can include errors that lead to rejections for people who are legally authorized to work in the U.S.
More than 770,000 immigrants live illegally in Florida, according to the nonpartisan Migration Policy Institute. Of that number, about 450,000 are employed. Beginning one year after the law goes into effect, Florida employers who don’t comply can face penalties including fines and loss of licenses.
A different provision of the new law also imposes penalties for any people who knowingly "employ, hire, recruit, or refer," a person who is not legally authorized to work in the U.S. That section of the law also makes it a third-degree felony to knowingly use false identification or someone else’s ID to get a job.
Exceptions to new employment provisions
The new law does not specifically mention seasonal workers, and it’s unclear whether they would fall under the E-Verify rules. The law’s E-Verify section defines an "employee" as someone holding a permanent position with a permanent employer. The law spells out just two exceptions when the E-Verify requirement would not apply:
- Casual labor completed in a private residence, which is defined as occasional work that does not exceed 200 hours. If the work is done over one to two months, it cannot take more than 10 days. This would cover certain housekeeping or child care jobs if they are performed within the time limits, said Phyllis Towzey, a Florida employment lawyer.
- Work by independent contractors, who are defined as self-employed people hired to perform a specified portion of labor or services as long as an employer does not control how the services will be done. Towzey said there are strict laws to determine whether someone is an independent contractor.
"A consultant that a vineyard brings in to refine certain aspects of the winemaking process would qualify as an independent contractor," Towzey said. "The people picking the grapes would not."
Although the law specifies that the E-Verify provision applies only to employees in a "permanent position," it doesn’t define "permanent position," said Deirdre Nero, a Florida immigration employment attorney. That means it could be left up to courts to determine what constitutes a permanent position.
But defining "employee" and determining who is excepted from that definition applies only to the law’s E-Verify provision, said Alexis Tsoukalas, a policy analyst at Florida Policy Institute.
That means the law’s other sections about knowingly employing someone who is not legally authorized to work in the U.S. or using a fraudulent ID to get a job, "apply regardless of whether the position is permanent, casual, or an independent contractor," Tsoukalas said. Those rules also would apply to companies with fewer than 25 employees.
The different terminology that is used in that section of the law suggests it applies to a broader group of people "even if an individual is hired for a short period of time (like a seasonal worker)," Nero said.
Will the new law apply to seasonal workers?
Roth singled out "seasonal workers" in his statement. Experts varied in their opinions about whether use of the language "permanent position" in the law’s E-Verify provision excludes employers from having to use the system for seasonal employees.
Though Roth — who is a farmer — appeared to be referring to agricultural workers, seasonal workers also can include retail workers hired during a holiday season, hospitality workers hired for the summer months or musicians who play during an orchestra’s season, said Towzey.
In 2022, Florida ranked first in the U.S. in the number of positions approved for temporary agricultural worker visas, with more than 50,000, according to the U.S. Department of Labor. The state ranked second for nonagricultural worker visas with more than 19,000 positions approved.
In 2020, about 45,000 Florida farmworkers out of 124,000 had H-2A visas, a 2022 Florida Housing Finance Corp. report shows.
New law and agricultural workers
Though many people might think of agricultural workers as seasonal and temporary, that’s not true for all agricultural workers, said Tsoukalas.
Around 83% of agricultural workers nationwide worked for one employer during a 12-month period and had been working for their current employer for around eight years, responses from the National Agricultural Workers Survey show. On average, in a year, a U.S. agricultural worker works 46 hours a week on a farm for about nine months, according to the survey.
The immigration bill does "not include a specific carve-out for ‘agricultural labor,’" said Juan Caballero, director of the University of Florida’s Immigration Law Clinic. A separate Florida statute defines "agricultural labor" as any paid service in agriculture.
"Farmworkers and other agricultural workers are still likely to be impacted" by the immigration law, Tsoukalas said.
An annual U.S. Department of Agriculture survey shows that around 45% of all U.S. agricultural workers are in the country illegally. Florida has the third-highest number after California and Washington, the Center for Migration Studies said.
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- Email exchange, Cynthia Waisman, immigration attorney, June 21, 2023
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- Phone interview, Neza Xiuhtecutli, executive director for the Farmworker Association of Florida, June 23, 2023
- Email exchange, Ira Kurzban, immigration attorney, July 5, 2023
- Email exchange, Alexis Tsoukalas, Florida Policy Institute policy analyst, July 5, 2023
- Email exchange, Phyllis Towzey, employment lawyer, July 7, 2023
- Email exchange, Deirdre Nero, attorney, July 7, 2023