By Mark F. Kluger and William H. Healey
As tempting as it is for New Jersey and New York employers to view the termination of the Deferred Action for Childhood Arrivals (“DACA”) program as just another political issue, the I-9 and other immigration law compliance implications are too important to ignore. Both states are in the top 10 for the most DACA recipients with a combined 64,000, almost all of whom are employed. Keep in mind that although DACA recipients are from many countries, the vast majority are of Hispanic origin; New York has the 4th largest Hispanic population nationwide, and New Jersey has the 7th most. Pulling the plug on DACA requires employers to have a close look at each employee whose Employment Authorization Document (“EAD”) is based on DACA status.
In simple terms that even we employment lawyers can understand, DACA, which came into effect through an Executive Order in 2012, essentially defers the deportation of individuals brought to the U.S. as minors, presumably by their parents, who had no legal right to enter the country. The order, implemented by the Department of Homeland Security (“DHS”), applied to those who were younger than 16 upon arrival, had been here since June 15, 2007, were under 31 years old on June 15, 2012, met certain educational or military service criteria, and had no felony or certain misdemeanor convictions or fewer than 3 total misdemeanor convictions. If individuals met those criteria, they could receive an EAD, renewable every 2 years. It is on the basis of those 2 year EADs that DACA recipients are currently working or are in college or graduate school.
On September 4, 2017, the Attorney General instructed DHS to phase out DACA or he would challenge the constitutionality of the Executive Order. Although the fact is that the Executive Order, and many others implemented by multiple Presidents, might well be an unconstitutional usurpation of Congressional authority, by some crazy coincidence DHS just happened to have a memo ready to go out on the same day as the AG’s announcement in which it declared its intention to wind down DACA and the specific plan for doing so. Now that is swift government action!
Here are the important details that employers need to know:
- Current EADs issued under DACA remain valid until their expiration date
- Pending applications for EAD renewals will be processed
- Renewal applications on EADs that expire between 9/5/17 and 3/5/18 will be processed if received and accepted by DHS no later than 10/5/17
- Pending applications for initial DACA status will also be processed
- No new applications will be accepted
We do not yet know whether the renewals will be for 2 years as previously or some shorter period. Either way, it is important for employers who want to keep their DACA employees to be aware of these variables. It is also important to know that as of now, DACA recipients will most likely not be allowed to return from travel outside the U.S. unless their travel had been previously approved by DHS. So if you want them back, don’t let them go.
Congress now has until March 2018 to turn the DACA program into federal law should it choose to do so before employers need to terminate DACA workers and DHS will likely start deportations. Fortunately though, because Congress typically acts quickly and decisively, DACA recipients can rest easy. Sure thing.
As DACA’s termination has sparked yet another flurry of protests on the streets and through the media, employers must also be aware of this debate’s impact in the workplace. In May 2017, the American Psychological Association (“APA”) announced the results of a Harris Organization survey showing the negative impact on employees of political discussions at work. An astounding 40% of workers surveyed reported at least one of the following negative reactions to political chatter at work:
- Reduced productivity
- Poor quality work
- Difficulty getting work done
- More negative view of co-workers
- Increased work-related hostility
Twenty six percent (26%) felt stress and tension because of political talk at work and twenty one percent (21%) said they just felt overall more cynical because of it.
We’ve said it before and we will say it again. Private sector employees have no First Amendment right to talk about politics at work and employers are well advised to shut it down. No good can come from it–so just tell them to knock it off.