September 11, 2017
Emerson is Compliance Counsel at Ceridian with many years of experience in U.S. and international legal research and writing. In his current role, Emerson tracks U.S. and international employment legislation impacting Ceridian products, works closely with development teams to integrate compliance changes into the company’s Dayforce HCM software, and conducts legal research as needed.
On Tuesday Sept. 5, the Trump Administration ordered an end to an Obama-era program that protects certain undocumented immigrants who entered the country as minors from immediate deportation and gives them work permits for a two-year period. President Donald Trump framed his decision to end the DACA program as “compassion for unemployed, struggling, and forgotten Americans.”
The Deferred Action for Childhood Arrivals (DACA) program was created by executive order by former President Barack Obama in 2012. Obama stated that he created the program because “it makes no sense to expel talented young people who are, for all intents and purposes, Americans.”
Trump has announced that he will terminate the DACA program with a six-month delay for current DACA recipients to give Congress time to pass a legislative fix.
Senators Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.) have now introduced bipartisan legislation called the DREAM Act that would give young immigrants a path to citizenship. Trump’s decision to end the DACA program may finally motivate Congress to pass a version of the DREAM Act. A small contingent of Republicans in both chambers of the Republican-controlled Congress have a history of co-sponsoring or voting for bills that would protect the rights of DACA recipients (called DREAMers).
The Trump Administration’s decision to end the DACA program puts many of the nearly 790,000 young undocumented immigrants at risk of deportation as early as March 2018.
However, President Donald Trump claims that he has “advised the Department of Homeland Security that DACA recipients are not enforcement priorities unless they are criminals, are involved in criminal activity, or are members of a gang.” The Department of Homeland Security has also indicated that DACA applications will not be “proactively provided” to immigration officials or border patrol. Nevertheless, Thomas Homan, acting Director of U.S. Immigration and Customs Enforcement, has recently said that all undocumented immigrants are subject to deportation and “should be uncomfortable… and need to be worried.”
Fifteen states and the District of Columbia have joined together to file a challenge in New York to the Trump administration’s decision to end the DACA program. The suit alleges that the decision to end the DACA program was motivated by discriminatory reasons, violates due process by being “fundamentally unfair,” and violates laws that require the administration to engage in a formal notice-and-comment process prior to rescinding the DACA program.
There is no question that the Trump administration’s decision to end the DACA program is disruptive and is going to pose some challenges for employers.
Employers are now faced with balancing support for their employees who may be DACA recipients while trying to prepare for upcoming changes, including the possibility that certain positions may have to be vacated because of the DACA decision. If Congress does not act, the President’s decision to end the program will eventually force DACA recipients out of the workforce. As difficult as the choices may be to employers, failure to comply with federal employment verification processes has the potential to open employers up to serious civil and criminal penalties.
In preparation for the end of the DACA program, an employer should make its workforce aware that some DACA recipients have until October 5, 2017 to renew their DACA status. An employer should also take care to avoid prematurely terminating any known DACA recipients or asking individual employees about their work status because these actions have the potential to open the company up to discrimination lawsuits.
Over 400 leading U.S. companies have already urged Congress to restore DACA’s protections. While there is still time to act, employers should consider contacting their representatives to express their concerns. Employers should also consider providing employees with personal or legal support options.
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Disclaimer: The information provided in this post is provided for informational purposes only and should not be relied upon or construed as legal advice and does not create an attorney-client relationship. You should review with your legal advisors how the laws identified in this post may apply to your specific situation.