Major U.S. companies, including Microsoft, Facebook and Apple Inc., have pushed back againstthe Trump administration’s plan to rescind the Obama-era authorization program that allowed an estimated 800,000 undocumented immigrants to remain in the country.
Yet, if the Deferred Action for Childhood Arrivals program is terminated and Congress doesn’t craft new rules, any defiant companies that move to shield workers from deportation could be exposed to compliance headaches and legal hurdles, employment lawyers said.
DACA, as the immigration policy is known, protects from deportation certain younger immigrants who arrived in the United States as children. U.S. Attorney General Jeff Sessions’ announcement Tuesday that the program would be rescinded—as early as six months from now—injected great uncertainty into the program and potentially sets up a clash between company executives and the U.S. government. Many chief executives publicly criticized the move to end the program—offering assistance to employees to find immigration experts or even paying for any legal fees.
Employment attorneys, speaking with The National Law Journal, said companies should put a system in place now to cut down on any disruption and also seek to avoid any potentially discriminatory actions in the coming months. Some estimates show $6.3 billion in employee turnover costs for companies. A recent report said 75 percent of major U.S. companies employee workers who are participating in the DACA program.
But many U.S. companies might not know they are employing a worker who’s benefiting from the DACA program.
Andrew Merrills of Ogletree, Deakins, Nash, Smoak & Stewart said employers could open themselves to discrimination questions if they act too soon to identify any employees who are authorized to work through the DACA program. He warned companies to avoid any language—in emails or other announcements—that might appear discriminatory.
To cut down on disruption, Scott Fanning, an immigration attorney at Fisher & Phillips, advised companies to conduct a review of employees affected, notify employees about applying for an extension to help minimize disruptions and remind employees to file last-minute extension applications.
Fanning said businesses should set up systems to track the expiration of worker authorization, or risk being hit with stiff penalties.
'Clients Are Calling'
The reality is that employers will have to deal with the possibility that workers with DACA authorization will come off the payroll and will not be employable after their permits expire, said Matthew Dunn, partner and immigration attorney at Kramer Levin Naftalis & Frankel.
“It could be a real difficult time for employer and employee at the end of the work eligibility period,” Dunn said. “Clients are calling and are very concerned about how they can support this population. The unfortunate reality is there is no way to bridge the gap to make someone brought here unlawfully authorized to work. They are asking, ‘How can we help this person?’”
According to Recode, Apple and Microsoft pledged to protect workers who face deportation in the form of legal counsel or intervening in court cases to defend the immigration program. The New York Times published the extensive list of companies who support and spoke up about the program, as well. The Washington Post reported that one multinational corporation that declined to be named offered employees the opportunity to be transferred to other countries.
President Donald Trump gave Congress six months to move forward on any new rules to replace the DACA program. He said this week that if Congress fails to act he will “revisit” the issue.
“I don’t have great hopes because legislation has not passed over the last decade or so that has been positive for foreign nationals or immigrants,” Dunn said. “We haven’t seen any employment-based legislation that has been supportive of sponsorship of foreign nationals. I’m concerned DACA is going to fall into that.”
Unlike a work visa, in which the company sponsors its worker, paperwork is the only way a DACA recipient is identified by the company, said Ian Macdonald, co-chairman of Greenberg Traurig's labor and employment team’s international employment, immigration and workforce strategies group.
The Compliance Risk Perspective
“Identifying DACA work authorization holders will be challenging for several employers,” Macdonald said. “You are looking at about 30,000 individuals each month coming up for expiration.”
He suggested companies carefully manage that section of their workforce—potentially an administrative headache. An attorney, he said, should review any email that’s sent out requesting employees inform the company about their immigration status. Even then, Macdonald said, workers may not come forward.
“They may be inclined to stay in the shadows, leaving companies in a place where the first time they hear that someone is undocumented during a worksite investigation,” he said. “A lot of companies in order to grapple this identified problem hav[e] to manually go through their records.”
The impact will be felt among employers, who must scramble not only with paperwork but also labor shortages and potential compliance issues.
“The population is typically individuals who have graduated from college and are in more professional positions,” Macdonald said. “Employers are in a place right now where they need to plan for contingency staffing replacements for this population. They may find out with a very short warning period that an individual is no longer able to work in the United States and have to identify a suitable replacement all within a very short amount of time.”
He said any employer that hires or continues to hire undocumented workers, intentionally or unintentionally, may be subject to civil fines, criminal penalties and debarment from government contracts.
Fines range from $539 to $21,563 per violation, he said. If an employer engages in a pattern and practice of failing to comply with employer sanctions provisions, such criminal conduct could result in criminal fines of $3,000 per unauthorized employee and a prison term of not more than six months for managers and executives who were involved in the wrongdoing.
Under federal immigration law, a company can be at fault for employing an undocumented worker, not the employee. There are few consequences for an employee to continue working but the company would have significant risk with penalties and fines, Macdonald said.
“This concern that what we are seeing today will only be amplified from a compliance risk perspective over the next several months,” he said. “The group of potential undocumented workers will only grow over time as these expiration dates come up.”
AFL-CIO president Richard Trumka said the stakes are high for workers themselves. “Ending DACA will increase the pool of vulnerable workers in our country and embolden employers to retaliate against working men and women who dare to organize on the job or speak out against abusive working conditions,” Trumka said. “This indefensible act will make our workplaces less fair and less safe and will undermine our freedom to join together and fight to raise wages and standards.”