On June 18, 2020, the U.S. Supreme Court ruled that the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (DACA) fell short of the legal requirements for ending such a broad executive program. The Court held that the U.S. Department of Homeland Security’s (DHS) effort to terminate DACA was “arbitrary and capricious” and remanded the case for further consideration, leaving the program intact.
What the Ruling Means for Contractors
The 5 to 4 opinion, written by Chief Justice John Roberts, focused entirely on procedural issues and does not preclude the DACA program from being terminated should the Administration still choose to end program by following the appropriate steps. For now, though, DACA recipients’ status is unchanged and contractors should not treat them differently from other employees.
DACA employees and job applicants should be treated the same as all others. Recent court cases underscore that actions to treat DACA recipients differently than other job applicants or employees could result in violations of anti-discrimination provisions of the Civil Rights Act or other U.S. law. For example, Proctor & Gamble recently lost a bid for summary judgment when a Florida federal judge ruled that barring DACA job applicants is a discriminatory violation of the Civil Rights Act.
A DACA job applicant will likely provide an Employment Authorization Document (EAD) upon hire which is a qualifying document. Applicants are free to use any qualifying I-9 documents and employers may not insist on a particular document from job applicants. However, because an EAD may expire, contractors should have systems in place to ensure timely re-verification of expiring documents and follow relevant rules related to employment with pending document extensions.
Read the full Supreme Court DACA opinion: DEPARTMENT OF HOMELAND SECURITY v. REGENTS OF THE UNIVERSITY OF CALIFORNIA.
Read the P&G DACA order.