Second, what should a manager do if an employee asks for a letter confirming proof of employment for use in a DACA application? This scenario differs from an employee asking for a proof of employment letter for an unspecified purpose, which would not present an employment authorization issue. However, if the employee specifies that the purpose of the letter would be for their DACA application, the approach in the first situation applies.
A third fact pattern involves an employee who has been working with a company and presents work authorization obtained through DACA. If the employee was dishonest in the hiring process (i.e., gave false name, date of birth or Social Security number or was not authorized to work at the time) and the company's honesty policy is to terminate such individuals, then the company likely will have to consider terminating the employee, even though he or she has proof of work authorization now.
What if the company doesn't want to lose the worker? The legal department can consider an alternative possibility: Terminate the employee and rehire him or her. This is acceptable as long as the company does it uniformly and this decision does not represent disparate treatment to the detriment of others terminated under the honesty policy for other types of violations. In the rehire scenario, the employer would have to complete a new I-9 and use the DACA employment authorization card.
Another potential encounter would involve a new hire who presents work authorization obtained under DACA that is valid for only two years of employment. DACA is an executive branch creation, which means that the current administration must order renewal of the benefit every two years. Some employers prefer not to employ someone who may not be eligible for employment beyond the two year period without the employer's sponsorship for some other form of work authorization.
Employers are permitted to ask job applicants whether, now or in the future, they will require sponsorship for an immigration benefit. Employers can take into account the temporary nature of the work authorization when deciding among candidates as long as they do not use the temporary nature of the individual's work authorization as a pretext for discrimination on the basis of national origin.
With an estimated 940,000 eligible to apply for this authorization, GCs should be prepared to address one or more of the possible scenarios in their companies' workforces.
Leigh Ganchan is a shareholder in Ogletree Deakins in Houston.