Commentary and Background on the DACA Decision 

President Trump announced last week via U.S. Attorney General Jeff Sessions that he is ending the Deferred Action for Childhood Arrivals (DACA) program that President Obama instituted in 2012 by executive order. DACA allows for certain illegal immigrants who entered the country as minors to receive a renewable two-year period of deferred action from deportation and eligibility for a work permit.

Under this decision, the U.S. Department of Homeland Security will rescind the executive order that established DACA and not accept new program applicants. It puts 800,000 “dreamers” (including an estimated 10,000 Hoosiers) – children who arrived in the U.S. illegally with their parents at a young age – into legal limbo until it takes effect March 2018. This is an unfortunate turn of events for a demographic group where 90% are either in college or working.

As a result, 15 state attorneys general (all Democrats) filed suit this week to block the President’s plan to end DACA.

During the announcement, Sessions commented that actions under the Obama administration were unconstitutional and that the program should be enacted by Congress. Even Sen. Dianne Feinstein (D-CA) implied that President Obama’s executive order to protect young immigrants brought here as minors was on shaky legal ground and that is why Congress must act.

Over the next six months, President Trump is counting on Congress to do just that and essentially fix the DACA situation once and for all.

The Indiana Chamber believes lawmakers must address the issue as part of a larger immigration reform package, but it remains unclear whether both sides can compromise to reach a solution. Some are adamant that they will not accept any deal to fund even small amounts of a border wall or increased immigration enforcement, and cuts to legal immigration would be unacceptable. Other members of Congress are saying you need to pass this as part of border security, while a contingent believes you need to pass this on its own – which makes the possibility of its success very difficult.

On Wednesday, Sen. Tom Cotton (R-AR) said he was open to adding legal status for DACA recipients to his RAISE Act legislation – the goal of which is to build a skills-based immigration system similar to Canada or Australia while decreasing the amount of legal immigration overall.

Indiana’s senators Joe Donnelly and Todd Young reacted to the DACA news.
“Our country is still in need of reforms to fix our immigration system and strengthen border security, but in the interim we should pass bipartisan legislation to give these young people, who were brought here through no fault of their own, some stability and clarity,” Donnelly said.

“Upending existing protections for the nearly 10,000 young people in Indiana who have been here for most of their lives isn’t the path we should take.” Young stated: “I continue to believe we must secure our southern border and fix our broken immigration system. Irrespective of (the Trump) announcement, that requires a bipartisan solution in Congress that reforms our legal immigration system, prevents illegal immigration and addresses the question of what to do with undocumented men, women and children already here.”

BACKGROUND

So how did we get to this point with DACA and immigration? It’s been many years in the making. Attempts to address illegal immigrants who entered this country as minors date back to as early as 2001.

In 2007, the DREAM (Development, Relief and Education for Alien Minors) Act was introduced in the Senate. The Act allowed for a process by which qualifying alien minors would first be granted conditional residency. Eventually, by meeting further qualifications, permanent residency status could be obtained. It failed to be brought up in debate for lack of a filibuster-proof 60 votes. In 2009, it was reintroduced in both the Senate and House, and provided for qualifying immigrants who were between the ages of 12 and 35 at the time of enactment; who arrived in the U.S. before 16 years of age; resided continuously in the U.S. for five years; graduated from high school or obtained a GED; and were of good moral character. The bill continued debate into 2010 when the House passed a version, but the bill again failed to reach the 60-vote threshold in the Senate. Unsuccessful attempts were made in 2011 as well.

As a result of Congress’ inability to pass legislation, the Obama administration by executive order implemented the policy position of DACA in June 2012.
In 2013, the U.S. Senate’s “Gang of Eight” passed a comprehensive immigration reform bill in the Senate. In 2014, the House indicated it had the votes to pass the bill. However, when House Majority Leader Eric Cantor lost his primary election, House Speaker John Boehner announced that the House would not bring the bill to a vote. As a result, President Obama promised to fix the immigration system as much as possible on his own without Congress and attempted to expand DACA to include the parents (known as DAPA) of these minors. In a memorandum to ICE (U.S. Immigration and Customs Enforcement), aliens without criminal histories were to be made the lowest priority and that illegal immigrants who are the parents of U.S. citizens or lawful permanent residents were to be granted deferred action.

Subsequently, the Texas attorney general – joined by 25 other Republican-led states, including Indiana – sued in federal court in Texas to prevent implementation of the expansion. The case eventually worked its way to the U.S. Supreme Court and in June of 2016, a deadlocked 4-4 decision stated that: “The judgement is affirmed by an equally divided court.”  The ruling set no precedent and simply left in place the lower court’s preliminary injunction blocking the program.

Earlier this summer, on June 15, 2017, then Homeland Security Secretary John F. Kelly signed a memo rescinding DAPA. At that time, it was clarified that the memo did not include DACA and the Trump administration had not decided on whether it would keep that policy in place.

Which brings us to action last week on September 5. Attorney generals from nine states – led by Texas – notified the Justice Department that they would amend the current DAPA lawsuit to include DACA if executive action wasn’t taken by September 5 to phase it out, which prompted the announcement by U.S. Attorney General Jeff Session.

New Workplace State and Federal Posters: Order Yours Now

Poster_Subscript_serviceWe’re printing new state and federal workplace posters due to some material changes that have been made this year — including a new mandatory supplement for federal contractors to the “Equal Opportunity is the Law” posting that was released this week. Here are the recent updates (below), and you can order new sets online — or join our free subscription service to take the burden off of yourself when it comes to tracking changes:

  • Indiana Teen Worker Hours: The differentiation between “your work permit allows you to work” and “with parental permission you may work”; maximum hours; break requirements; graduates/withdrawn from school information.
  • OSHA Job Safety and Health: It’s the Law (updated in early 2015): The federal OSHA poster was given a new look. The changes were mostly visual, although two new bullet points were added, stating employers must: (1) Report to OSHA all work-related fatalities within eight hours, and all inpatient hospitalizations, amputations and losses of an eye within 24 hours; and (2) Provide required training to all workers in a language and vocabulary they can understand.
  • Supplement to “Equal Employment Opportunity is the Law” Poster for Federal Contractors: This supplement was released in September 2015 as part of the OFCCP’s final rule promoting pay transparency. It requires that federal contractors and subcontractors amend equal employment opportunity information to state that it is unlawful to discharge or otherwise discriminate against employees or applicants who inquire about, discuss or disclose their compensation or the compensation of other employees or applicants. It also contains information on federal contractors’ obligations regarding affirmative action and employing individuals with disabilities and veterans.

New NLRB Poster Requirement: Place Your Pre-orders Now

We want to let you know that on August 25, the National Labor Relations Board approved a new mandatory posting for private employers regarding the National Labor Relations Act.

You can pre-order new poster sets on our web site or call (800) 824-6885. Or better yet, join hundreds of Hoosier businesses by signing up for our poster subscription service. With this service, we’ll just send you new poster sets when MANDATORY changes are made. This gives you peace of mind of not having to track updates to keep your company in compliance. The service itself costs nothing extra; you just pay for the posters as you normally would. (Poster sets are $45 each and Indiana Chamber members receive 25% off.)

The new poster has not yet been released by the NLRB, but expect your new poster set(s) about two weeks after it is. (The new NLRB notice must be posted by November 14.)

NOTE: As this is an additional notice, our sets will likely once again include three sheets instead of two. This will not impact the cost on your end, however.

Digging Out of a Big Debt Hole

Just where do your tax dollars go in Washington? According to Congressional Budget Office figures for fiscal year 2010:

  • Health: 24%
  • Defense and Social Security: 20% each
  • Safety net programs: 14%
  • Interest on debt: 6%
  • Everything else: 16%

The troubling figure is the smallest percentage listed above. Within 10 years, interest payments will rise to 9% (barring a reveral of course) with $1 trillion being doled out and none of it going to debt principal. Based on current tax rates, nearly half of all income tax revenue would be needed just to pay the interest on the national debt.

That’s an Unhappy New Year thought. Washington lawmakers and bureaucrats are you listening: Act now to give all a fighting chance in the future.

New Posting Proposed, Would Be Mandatory

Though still in the comment period, it appears there could be a new mandatory federal posting looming. As always, you can trust the Indiana Chamber to keep you informed and to release new sets if this new posting is adopted. HRWatchdog posts:

The National Labor Relations Board (NLRB) proposed the new posting requirement in a Notice of Proposed Rulemaking submitted for publication in the December 22, 2010, Federal Register.

The new posting requirement would cover all employers subject to the National Labor Relations Act (NLRA), and would require posting of employees’ right to unionize under the NLRA. This posting would be mandatory in most all workplaces, regardless of whether union employees are present in the workplace. The posting requirement is similar to one that is now required for government contractors.

Employers may comment on the proposed rule during a 60-day comment period.

The new posting, as proposed, would include information on employees’ right to:

Organize a union;

  • Discuss terms and conditions of employment;
  • Take action to improve working conditions; and
  • Strike and picket. 

The posting would also have to include conduct prohibited by the NLRA, such as:

  • Prohibiting employees from soliciting for a union during non-work time;
  • Firing, demoting or transferring employees because of their support for a union; and
  • Threatening to close the workplace if employees unionize.

Finally, the new posting, as proposed, would require information on activities that the NLRA prohibits unions from undertaking:

  • Threatening loss of job unless the union is supported;
  • Refusing to process a grievance because of union criticism by an employee; and
  • Taking adverse action against an employee based on whether or not the employee has joined or supported a union.

Be sure to sign up for our poster subscription service so you never have to worry about tracking poster updates again. The service is free; you just pay for the posters.

Misleading Use of Social Media Could Warrant Federal Fines

Thinking of having your employees pose as customers and post positive reviews of your company online? You might want to think again, Shady McSketchball. The Federal Trade Commission now has precedent to drop the proverbial hammer on your business if you’re caught in such acts. The California Chamber’s HR Watchdog blog explains:

The New York Times recently reported that a California-based company settled charges with the (Federal) Trade Commission (FTC). The FTC alleged that the company engaged in deceptive marketing practices by encouraging its employees to post favorable reviews for its clients’ games on iTunes. The employees did not disclose that they were being paid to write favorable reviews.

Late in 2009, the FTC made changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising. The FTC’s guides address endorsements by consumers, experts, organizations and celebrities. The FTC said the revised Guides also add new requirements that mandate that “material connections” between advertisers and endorsers (sometimes payments or free products) must be disclosed because consumers would not expect these connections to exist.

These examples define what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The guides stipulate that the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement.

Inform your employees that they should not post testimonials or endorsements on social media Web sites about your company or any of its products or services without disclosing their relationship to your company.

Carter Discusses Small Businesses with SBDC

Indiana Chamber VP of Small Business & Economic Development Cam Carter discusses issues pressing Indiana small businesses in a recent interview with the Indiana Small Business Development Center. He talks about the Chamber’s key achievements and the status of current policies.

Congress Gives States More Money; Indiana’s Share Estimated at $434 Million

Just before heading home for its August recess, the U.S. Senate passed a $26 billion mini-stimulus that it struggled with for months. And House leadership decided to call its members back from recess to act on the legislation, which has two main components: (1) $16.1 billion to extend increased Medicaid funding for states (what is referred to as FMAP or Federal Medical Assistance Percentages); and (2) another $10 billion said to be needed to prevent teacher layoffs.

The debate involved both fiscal prudence and the perceived benefit of these state subsidies, as well as the specifics of how to pay for them. Proponents say $9 billion is to be generated from a "provision that closes corporate tax breaks on income earned overseas." Proponents think this ends an incentive to "export jobs overseas." A different – and more accurate – description would be that this is nothing more than a tax increase for businesses that happen to employ workers both in the U.S. and overseas.

The debate took its own politically charged form in Indiana this week, as efforts were made to characterize Gov. Daniels as inconsistent on the FMAP funding issue. He and 42 other governors sought the funding in a joint letter from the National Governors Association, with some qualifying statements, back in February, but Gov. Daniels has consistently pointed out the detrimental effects of the federal government continuing to spend money it doesn’t have while putting this particular legislation in that category.

The federal package would provide an estimated total of $434 million to Indiana: $227 million for six months of additional FMAP funding (an extension of provisions in the American Recovery and Reinvestment Act, aka the stimulus bill) and another $207 million under the teacher funding element. A $227 million subsidy to our state finances would be helpful as the General Assembly prepares for what all agree will be a brutal budget session in 2011. And school districts no doubt would welcome the money as they grapple with their budgets. But, the situation seems to pit practicality against principle. Regardless of your philosophy or political affiliation, the question remains: Why shouldn’t Indiana citizens and businesses who pay federal taxes receive the benefit of money that the federal government insists on distributing?

OSHA Ramping Up Efforts to Crack Down on Businesses

Chamber member Frost Brown Todd tells you what you need to know about the Occupational Safety and Health Administration (OSHA) and how it’s heightening efforts to bust businesses who aren’t complying with safety regulations. What’s been allowed to slide in the past may get your company in trouble by today’s standards:

Employers should be aware that the Occupational Safety and Health Administration (OSHA) has been loudly broadcasting to everyone who will listen that it is stepping up its enforcement efforts. As the assistant secretary of labor for OSHA, David Michaels, proudly announced in a recent speech, OSHA cited almost twice as many employers for egregious violations in the first quarter of 2010 than it had in all of the previous fiscal year, and OSHA also issued the largest fine in its history to British Petroleum.

Recent developments indicate that, if anything, Michaels understated the current trend at OSHA. Not only is OSHA more stringently enforcing its existing standards, it is also expanding its enforcement efforts under the general duty clause, and maximizing penalties for employers charged with safety violations.

If you need information on safety and ergonomic information (federal and state), I’d advise you to look into acquiring our popular Safety & Health Guide, authored by attorneys at Ice Miller.

Feds See Increase in Six-Figure Salaries During Recession

So your business may very well be feeling the pinch these days. In the federal government, however, it seems business, and salaries, are booming. USA Today recently examined the situation that has one Utah Congressman up in arms, saying "There’s no way to justify this to the American people. It’s ridiculous." The USA Today writes:

The number of federal workers earning six-figure salaries has exploded during the recession, according to a USA TODAY analysis of federal salary data.

Federal employees making salaries of $100,000 or more jumped from 14% to 19% of civil servants during the recession’s first 18 months — and that’s before overtime pay and bonuses are counted.

Federal workers are enjoying an extraordinary boom time — in pay and hiring — during a recession that has cost 7.3 million jobs in the private sector…

Key reasons for the boom in six-figure salaries:

Pay hikes. Then-president Bush recommended — and Congress approved — across-the-board raises of 3% in January 2008 and 3.9% in January 2009. President Obama has recommended 2% pay raises in January 2010, the smallest since 1975. Most federal workers also get longevity pay hikes — called steps — that average 1.5% per year.

New pay system. Congress created a new National Security Pay Scale for the Defense Department to reward merit, in addition to the across-the-board increases. The merit raises, which started in January 2008, were larger than expected and rewarded high-ranking employees. In October, Congress voted to end the new pay scale by 2012.

Paycaps eased. Many top civil servants are prohibited from making more than an agency’s leader. But if Congress lifts the boss’ salary, others get raises, too. When the Federal Aviation Administration chief’s salary rose, nearly 1,700 employees’ had their salaries lifted above $170,000, too.

In the article a government affairs director for the Federal Managers Association contends, "the federal workforce is highly paid because the government employs skilled people such as scientists, physicians and lawyers," adding that federal employees make 26% less than private workers for comparable jobs.

What do you think? Is this government spending careening out of control, or are these salary increases just?