With DACA’s Demise, Employers Must Tread Carefully

As the Trump administration winds down the Deferred Action for Childhood Arrivals (DACA) program, employers need to exercise caution when dealing with employees covered under the program to avoid running afoul of federal law, according to an immigration expert who spoke in a recent webinar. 

DACA is an Obama-era program that allows immigrants who entered the U.S. as children to receive renewable two-year deferrals from deportation so that they can work or go to school. The Trump administration has begun taking steps to rescind the program and imposed a deadline of October 5 for all recipients of the program to apply for renewal of their DACA status. 

Yet even with the clock ticking on these individuals’ immigration status, they retain legal protections with regard to their employment if they have a valid employment authorization document (EAD), said Jorge Lopez, an immigration attorney with Littler Mendelson. 

"At the end of the day, the EADs they’ve been issued haven’t been rescinded by law, so these individuals are still considered to be employment authorized," he said. "So we should not be terminating someone because they are a DACA recipient who may be coming up for renewal." 

The same applies in the hiring context, as employers that refuse to hire an individual because they are a DACA recipient could potentially be sued for discrimination based on national origin. Employers are advised not to ask applicants or employees if they are DACA recipients, as the only relevant factor from a legal perspective is their EAD expiration date. 

"If a DACA recipient is currently employed, the employer should simply track the expiration on the EAD card and give employees notice that their card is about to expire and that they need to present valid documentation on or before the expiration of the EAD card," he said. 

When a DACA recipient’s EAD card expires, employers should dismiss the employee rather than putting him or her on unpaid leave to avoid any appearance of continued employment of the employee. "It is a lot cleaner for the employer and the employee, because there are no longer any connotations that they are receiving benefits from the employer. When they are put on unpaid leave they are still receiving benefits from the employer in most cases," he said. 

Employers that knowingly employ an undocumented worker can be fined around $2,300 for improperly completing their I-9 form, and about $4,300 for the continued intentional employment of an undocumented worker. 

Additionally, employers can face criminal penalties for knowingly employing undocumented workers. "This is extremely relevant due to the culture that exists today with regard to the processing of applications for DACA recipients, as I am seeing more I-9 audits and site visits by ICE," said Lopez, referring to U.S. Immigration and Customs Enforcement. He added that "compliance is something we should take seriously, particularly in this current environment." 

The bottom line is that employers need to closely track developments as they relate to the winding down of the DACA program and ensure they are abiding by relevant federal laws. Employers will also want to keep a close eye on their requirements under state law, as some states will allow undocumented individuals to receive unemployment benefits, while others will not.

And speaking of state laws, California has staked out a pro-immigrant stance with new legislation (A.B. 450) that requires federal immigration officials to produce a warrant to gain worksite access. The measure also bars employers from sharing confidential employee information such as Social Security numbers without a subpoena, or unnecessarily reverifying employment eligibility unless otherwise required by law. Employers also must notify employees within 72 hours of ICE audits at their workplaces.

Assemblymember David Chiu (D), who sponsored the California measure, stated the following in an Oct. 5 news release: "AB 450 demonstrates California’s determination to protect our economy and the people who are working hard to contribute to our communities and raise their families in dignity. At the same time, we are offering employers clarity about what to do when ICE agents target their places of business with indiscriminate raids."

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