The Trump administration has addressed DACA, or the Deferred Action for Childhood Arrivals program, which means that both small and large businesses must be cautious in regards to managing employees whom the program covers to ensure they are in compliance with federal law. Below are some key things to be aware of.
What Is DACA?
The Deferred Action for Childhood Arrivals program was initiated by President Obama and allows those who came into the United States as children to get deportation deferrals which are renewable every two years which enables them to attend school or work. The Trump administration is in the process of rescinding this program, and has given an October 5th deadline for program recipients to apply for DACA status renewal.
However, even with this deadline in place, the recipients of this program still have a number of legal protections, particularly regarding their employment, especially if they are in possession of an EAD, or employment authorization document. While DACA itself is in the process of being rescinded, this is not yet the case with EADs, which means employees who have them should still be classified as authorized for employment. In other words, employers should not be firing employees who are DACA recipients just because their status is subject to renewal.
How DACA Affects Talent Hiring
An employer that chooses not to hire someone because of their DACA status could be subject to litigation regarding discrimination. It is also best for employers not to inquire about whether their employees are recipients of DACA, as the only factor which is legally relevant is the expiration date for their EAD. This is the only thing that employers should monitor and they should notify employees when their EADs is nearing expiration so that valid documentation can be presented beforehand.
Once the EAD card of a DACA recipient becomes invalid, their employers can then dismiss them as opposed to placing them on leave which is unpaid so that they can prevent the appearance of their continued employment. This is a cleaner solution for both parties, as the employer won’t be accused of providing those benefits. The problem with using unpaid leave for these employees is that they will still be subject to them.
Any employer that is discovered to be intentionally employing a worker that is undocumented may be subject to a fine which ranges from $2,300 to $4,300 depending on whether the I-9 form was incorrectly filled out or continual violations are discovered. DACA applications are being more carefully scrutinized, and a number of I-9 audits have resulted in employers receiving visits from American Immigration and Customs Enforcement. Therefore, compliance is something that every employer should carefully consider. Furthermore, employers must continue to track changes involving DACA to ensure they are in compliance with the law. While some states do allow workers who are undocumented to get unemployment benefits, others do not.