Employers Should Be Aware of Recent Changes at the Federal Level

By Amelia J. Holstrom - Skoler, Abbott & Presser, P.C.

September 7, 2017

Over the past month, there have been several changes and announcements made by President Trump’s Administration that employers need to be aware of and watch closely over the next six months.  Below is an outline of those changes and why they are important for employers to keep a close eye on.

DACA Program Ended

On September 5, 2017, Attorney General Jeff Sessions announced that the government is ending the Deferred Action for Childhood Arrivals (DACA) program in March 2018.  The program, established in 2012 by the Obama Administration, allowed undocumented immigrants (applicants) brought to the United States as children to be granted protection that allowed them to apply for driver’s licenses, attend school, and obtain work permits.  The applicants had to pass background and fingerprint checks, among other things, before being granted protection under the program.  Since its creation in 2012, more than 750,000 individuals had been approved for the program.

According to the Attorney General’s announcement, the government will no longer accept DACA applications effective immediately.  The government will, however, accept renewal requests for anyone whose current work permits will expire before March 5, 2018.  The renewals are for two years.  What this means is that anyone with a DACA work authorization that expires after March 5, 2018 will no longer be authorized to live, study, and work in the United States and may be subject to deportation at the time their current authorization expires.

President Trump has called on Congress to act to protect those who were brought to the United States as children before March 5, 2018, when the renewals cease and the program officially ends.  Whether Congress will be able to do so before then is an open question.

In the interim, employers don’t need to do anything right now, but they will need to take action as the DACA work permit for each employee expires.  After March 6, 2018, any employer with an employee who has an expiring DACA work permit will need to reverify that employee’s employment authorization using the normal I-9 reverification process at the time of expiration. Employees who are unable to provide documentation supporting their continued employment eligibility will no longer be permitted to work for the employer.

As a practical matter, employers who employ those currently protected under the DACA program should be prepared to address the emotional impact the Trump Administration’s decision may have on those individuals.  These people’s ability to live and work in the United States, in some cases the only home they have ever known, is in serious doubt.  As a result, it is likely that employees may approach Human Resources or their managers about the matter and ask some important questions.  Employers need to be prepared to answer those questions in a calm and compassionate manner.

EEO-1  Pay Reporting is on Hold, for Now

As discussed previously on this blog, the Equal Employment Opportunity Commission (EEOC) proposed and later finalized a revision to the Employer Information Report (EEO-1) that would have required employers of more than 100 employees to begin providing pay data and hours worked on the annual EEO-1.  Covered employers are already required to provide race, ethnicity, sex and job category information on the EEO-1.

Since the change was finalized, the change had been widely criticized by employers as burdensome.  On August 29, 2017, employers received the break they had been waiting for when the Office of Management and Budget (OMB) informed the EEOC that it was going to review the pay data collection requirement and that the rule was stayed pending review.  As a result, employers will not need to provide pay data and hour information on the EEO-1 report filed in March 2018.  Covered employers, however, will still need to collect race, ethnicity, and gender data by job category and file by the deadline.

Although this is an initial relief for employers, employers need to watch developments in this area as the OMB has not indicated whether it will eliminate the pay data EEO-1 requirement after review.  As a result, it is possible that employers may still have to comply someday, just not by March 2018.

New I-9

In February, we reminded employers via our blog that they should be using the newest I-9 Form which was effective January 22, 2017.  In July 2017, the U.S. Citizenship and Immigration Services issued yet another revised I-9.  Employers must begin using the new I-9 Form, dated July 17, 2017, by September 18, 2017.  Employers who fail to do so risk penalties and fines.

DOL Seeks Input on Overtime Rule

As discussed in a recent blog post, the United States Department of Labor is seeking public comment on several specific questions related to the controversial, Obama-era overtime rule.  Employers have until September 25, 2017 to submit comments electronically at www.regulations.gov or view mail at Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW., Washington, DC 20210.  Employers who wish to comment should do so before the deadline.