The federal program known as Deferred Action for Childhood Arrivals (DACA) afforded nearly 800,000 young, undocumented immigrants (commonly recognized as Dreamers) the temporary right to live, work, and study in the United States. The program granted protection and work permits to DACA recipients for two years (or occasionally three years) and could be renewed upon expiration.
On September 5, 2017, Donald Trump announced that his administration is rescinding DACA. In rolling back the program, the government will not accept any new applications. And, those individuals whose DACA status expires on or before March 5, 2018 must file renewal applications by October 5, 2017. Without Congressional action to reinstitute protection, the status and work authorizations of all Dreamers will expire within two years of issuance, with the last authorizations ending on March 5, 2020 (2 years beyond March 5, 2018).
Assuming that Congress fails to take action to renew DACA, what will happen to individuals whose DACA work authorization expires? Will they be subject to immediate termination, or do they have any legal rights in the workplace? Unfortunately, Federal law makes it unlawful for an employer to knowingly continue to employ an immigrant whose work authorization has expired. Fortunately, Dreamers have no affirmative duty to disclose to their employer that she or he is a recipient and they are still protected by anti-discrimination laws. Here are some of the laws protecting Dreamers in the workplace:
1. It is discriminatory for an employer to fire a DACA recipient before her or his work permit expires. Doing so will be an adverse employment action based on the protected categories of race, national origin, or color. So, any DACA recipient who is terminated BEFORE their work permit expires has a legal claim for termination.
2. It is discriminatory for an employer to refuse to hire a DACA recipient, merely based upon their status.
3. It is discriminatory for an employer to conduct a selective check of employee’s work status, or target particular employees to re-verify their work eligibility.
4. It is unlawful for employers to require any employee to produce any documents beyond those required under IRS Form I-9 form, even if the employer has questions regarding the work status of an employee or applicant.
How the termination of DACA is going to affect individuals remains to be seen. Before Trump’s announced that he would end the DACA program, a long list of corporate executives, including those from Amazon, AT&T, Facebook, The Gap, General Motors, Hewlett-Packard, and Marriot, signed onto a letter addressed to Donald Trump, calling to preserve DACA. Since the announcement, Airbnb made a commitment not to fire Dreamers once their work permits expire, suggesting that they will refuse to do so even if they know their employees are no longer eligible to work. We can only hope that other companies will follow in Airbnb’s footsteps, and establish “sanctuary workplaces.”