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Deferred Action Attorney: Employer’s Potential Liability for Knowing Employment of Unauthorized DACA Workers

There has been much discussion about counseling individuals applying for Deferred Action for Childhood Arrivals (DACA), employers that offer jobs to undocumented workers may have specific issues to consider. What issues an employer must consider as they are asked to produce documents that will support their employee’s eligibility for DACA. As DACA applicants are, by definition, undocumented youth, employers needs to consider a number of important implications regarding the employer’s potential exposure under the employer sanctions laws. The AILA Verification and Documentation Liaison Committee issued a good practice alert on this topic as well.

A determination that an employer has constructive knowledge that an employee is not work authorized can result in employer liability in the event of an ICE raid or audit. Constructive knowledge is defined as knowledge that can be fairly inferred through the existence of particular facts and/or circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Unfortunately, constructive knowledge in this context can be imputed to an employer who fails to complete or improperly completes the Form I-9; acts with reckless and wanton disregard for the legal consequences of permitting individuals to introduce an unauthorized alien into its workforce or to act on its behalf; and fails to take reasonable steps after receiving information that the employee may be an alien who is not work authorized, such as the request by the employee for evidence needed to file the DACA application.

While an employer may be tempted to terminate the employment of an employee based upon the DACA issue, this action could be discriminatory and could result in lawsuits filed by the terminated employee or by the Equal Employment Opportunity Commission (EEOC), or both.

If the employer only becomes aware of an employee’s participation in the DACA program after the individual obtains and presents a work authorization document, there is no longer an issue of actual or constructive knowledge as the worker is no longer unauthorized.

Under long-standing USCIS and ICE guidance, an employer may employ a worker who previously provided false documents or a different identity as long as the employee has presented documents that appear reasonably to be valid and relate to the individual. However, if an employee who now presents a valid DACA work authorization previously presented false documentation during the hiring process, the employer with an honesty policy needs to consider any risks of retaining the employee if it has a policy of terminating employees who have lied or presented false documentation.

An employer with such an honesty policy should consider any exposure it may trigger if it retains an employee with DACA work authorization – who previously presented false documentation – if the employer regularly terminates other employees who lie or falsify documentation. This is a particularly important consideration given OSC’s recent interest in whether the employer’s enforcement of its honesty police was discriminatory conduct under the immigration-related anti-discrimination provisions.

Another important concern for employers in DACA-related issues is that it is unclear whether an employer that provides documentation of employment to unauthorized workers may be identified as a target for future government enforcement activity. One of the primary challenges for DACA applicants – similar to the challenges faced by legalization applicants under the Immigration Reform and Control Act of 19863 (IRCA) – is that they need to present evidence of the required continuous residence and physical presence requirements.

But whereas under IRCA the immigration statute specifically provided that the information furnished by the applicant would only be used to adjudicate the application, the confidentiality provisions of the DACA program are more ambiguous.

In summary, is that at this time there is insufficient guidance to provide a meaningful risk assessment to employers concerning the potential use of data in the files of DACA applicants to target employers in a criminal investigation. Employers should consult with an Immigration Attorney before releasing information to DACA applicants that may come back to bite them in the future.

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