The Trump administration recently announced that it would put an end to the Deferred Action for Childhood Arrivals (DACA) program. Those who successfully applied for the DACA program were granted work permits to allow them to work legally in the United States. When that program officially ends, employers who knowingly employ DACA recipients with expired work permits could face harsh penalties, including fines or jail time.
While the odds of an employer actually being targeted for an audit are low, it is a possibility, especially given President Trump’s order that an additional 10,000 immigration agents be hired.
Even with that possibility looming, employers should maintain the status quo for now. Employers should not begin terminating employees who are DACA recipients. Terminating those employees while they still have a valid work permit could lead to discrimination litigation based upon national origin or immigration status. Employers should also avoid prematurely questioning and targeting certain employees about their work status to determine if someone is a DACA recipient. If an employee’s work permit expires, an employer can ask for proof of a valid permit, but an employee does not need to disclose the basis upon which that employee was granted a valid work permit.
Employers should also refrain from rescinding employment offers to DACA recipients and from refusing to hire a DACA recipient simply because of their immigration status. Again, that could lead to discrimination litigation.
The termination of the DACA program, while scheduled, could be halted by other litigation. Employers should keep an eye on this issue to ensure they are complying with the law.