United States: DACA Rescission. (Beltway Buzz, September 8, 2017)

Last Updated: September 11 2017
Article by James J. Plunkett

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what's happening in Washington, D.C. could impact your business.

Congress returned this week from its August recess to begin a legislative period of 11 straight weeks in which the U.S. Senate, U.S. House of Representatives, or both chambers will be in session—all the way up to the Thanksgiving holiday. It's a good thing, too, because they sure have a lot to do. So hold on to your pumpkin spice lattes—it's going to be a busy fall. 

DACA Rescission. On Tuesday, the administration rescinded the Deferred Action for Childhood Arrivals (DACA) program. DACA was instituted in 2012 and allows undocumented immigrants who were brought to the United States as children to apply for deportation relief and work authorization. Though new applications will no longer be processed, current DACA recipients will be permitted to retain these benefits until their expiration (which generally occurs two years from issuance). Moreover, current recipients whose benefits expire within six months can reapply until October 5, 2017. The administration is pressuring Congress to provide a legislative solution to the matter by the time this six-month period expires in early March 2018. A few reactions to the DACA rescission:

  • For the employment law perspective, Marifrances Morrison, Whitney Brownlow, and Sarah J. Hawk have the details.
  • Already, individuals, organizations, and states are lining up to challenge the DACA rescission in court. What are they alleging? Among other claims, at least one author posits that the administration's decision to reverse DACA violates the Administrative Procedure Act.
  • How have employers responded? Approximately 400 business leaders sent a letter to the president urging him to preserve DACA, and the U.S. Chamber of Commerce noted that deporting DACA recipients "is contrary to fundamental American principles and the best interests of our country."
  • Now that Congress must address the issue, the Dream Act (and similar bills) will likely be the starting point for a legislative fix. First introduced in 2001, the Dream Act—which would essentially codify DACA—currently enjoys the support of Republican Senators Lindsey Graham (R-SC), Jeff Flake (R-AZ), and Lisa Murkowski (R-AK). Could they corral Republican colleagues who supported the 2013 comprehensive immigration bill such as Susan Collins (R-ME), John McCain (R-AZ), Marco Rubio (R-FL), and others to support a DACA fix? In the House of Representatives, at least 24 Republicans would have to join the 194 Democrats to get the 218 votes needed to pass legislation. Of course, this will all depend on the legislative calendar, how Republican leadership views the issue, and whether any bells and whistles—such as increased border enforcement or mandatory E-Verify—might be included in any such legislation. Regardless, this will be a heavy lift.

Mother Nature and Employment Law. In the aftermath of Hurricane Harvey and the pending arrival of Hurricane Irma, the Buzz hopes that workplace legal matters are the worst things with which those affected by the storms will have to deal. That being said, since it is always good to be prepared, Andrew T. Turner and Steven F. Pockrass have some great information on wage and hour issues that might arise from weather-related disasters. Similarly, Aimee E. Dreiss, Timothy G. Verrall, and Eric D. Penkert have very helpful information for employers looking to help employees impacted by natural disasters. Finally, Rachel A. Morris—despite being in the path of Hurricane Irma herself—took the time to hone in on federal and Florida-specific legal FAQs that might arise during natural disasters (now that's dedication!).

Overtime Litigation. Last week, we reported on the decision by a Texas federal judge to essentially turn his 2016 preliminary injunction of the U.S. Department of Labor's (DOL) changes to the overtime regulations into a permanent injunction. This week, the remaining litigation dominoes fell, as the Fifth Circuit Court of Appeals granted the DOL's motion to withdraw its appeal of the 2016 preliminary injunction as moot. So what's next? Though the DOL could still appeal last week's decision, we're betting that the agency is instead going to focus its efforts on its own regulatory "do-over" of the overtime rules. 

Congressional Update. Earlier today, the House approved legislation that will increase the debt limit, fund the government, and provide hurricane disaster relief. The next stop for the legislation will be the president's desk. From the labor and employment policy standpoint, assuming this bill is signed into law, it will not include policy riders to address issues like joint employment or "ambush" elections. However, these riders may be included in appropriations legislation still being considered by the House, so they may provide a starting point when these negotiations ramp up again in November and December. Happy holidays, indeed. 

Nominations Update. The White House has nominated Ogletree Deakins alum Cheryl Marie Stanton to be Administrator of the DOL's Wage and Hour Division and David G. Zatezalo, the former chairman of Rhino Resources, to be the next Assistant Secretary of Labor for Mine Safety and Health (William K. Doran has more on the latter). No word yet on when Stanton's or Zatezalo's confirmation hearings will be held, though the Senate Health, Education, Labor and Pensions (HELP) Committee already has hearings scheduled next week on the healthcare issues we've previously discussed. And we are still waiting on that committee to hold hearings on EEOC nominees Janet Dhillon and Daniel Gade. Similarly, no word on when the Senate will vote on William Emanuel's nomination to the National Labor Relations Board. 

The good news on the hearing front is that the Senate Judiciary Committee held its hearing on the nomination of current management attorney Eric Dreiband to run the Civil Rights Division of the Department of Justice. Dreiband previously served in the DOL and as EEOC General Counsel. Next stop for Dreiband is committee consideration, followed by a vote on the Senate floor.

ADA Public Accommodations. On September 7, 2017, the House Judiciary Committee reported out the ADA Education and Reform Act of 2017 (H.R. 620). The bill requires prospective plaintiffs to provide property owners notice of alleged violations, as well as an opportunity to correct those violations, prior to filing a lawsuit. Proponents of the bill argue that it will effectively address the unintended consequences of the public accessibility provisions of the Americans with Disabilities Act (ADA), which have resulted in so-called "drive-by" lawsuits. Opponents claim that it unfairly burdens individuals with disabilities who are seeking to enforce their rights. Interestingly, of the bill's 23 cosponsors, 11 are Democrats, so despite some heated opposition, there is more than nominal bipartisan support for the measure. 

May It Peas the Court. The end of summer means not just the start of a new school year, but also a new Supreme Court term (beginning in October). But this isn't the only thing the high court and schools have in common: They both have reputations—deserved or not—of having lousy cafeteria food. And in a tradition that sounds more like a college hazing ritual, the newest Supreme Court justice is required to serve on the committee responsible for the cafeteria's menu. This means that Justice Gorsuch (subscription required) is the latest Supreme Court justice to swap his black robe for a hairnet. So if your child is already complaining about this year's school cafeteria food, maybe he or she is simply laying the groundwork to be a future Supreme Court justice.

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