TPS on shaky ground Presented by DoorDash

TPS ON SHAKY GROUND: Acting Homeland Security Secretary Elaine Duke must decide today whether tens of thousands of people from Honduras and thousands from Nicaragua will continue to receive temporary protected status. Here’s how the program works: If a country experiences a natural disaster, armed conflict, or some other extraordinary event, the DHS secretary can extend protected status to its nationals for up to 18 months if they’re in the U.S. at the time of the event. Hondurans and Nicaraguans were initially granted TPS after Hurricane Mitch struck Central America in 1998; subsequently they received an extended series of renewals. Now protected status for the two countries is due to expire on Jan. 5. The department will also face decisions on TPS for Haiti later this month and for El Salvador in January.

The Trump administration has signaled it won’t continue the virtually automatic renewals that were common in the past. Along those lines, Secretary of State Rex Tillerson wrote in a letter to Duke last week that conditions in Central America and Haiti no longer warranted a TPS designation, Nick Miroff and Karen DeYoung reported in the Washington Post Friday evening. “Tillerson’s letter does not amount to a recommendation,” the Post reported. “But DHS is required to seek the agency’s input, and officials said the State Department’s position carries significant weight.” People from the aforementioned countries — Honduras, Nicaragua, Haiti and El Salvador — make up 94 percent of the roughly 439,000 approved for the program at the end of 2016.

A Homeland Security Department spokesman said on Sunday that a final decision had not been reached on Honduras and Nicaragua. In one scenario, the administration could terminate the TPS designation for the countries, but offer a final extension of 6-18 months. Such a move could pressure Congress to provide a legislative solution that would allow enrollees to obtain legal status. But whether lawmakers can find common ground on a bill remains uncertain, since they’re already grappling over immigration legislation (more on that below).

GOOD MORNING! It's Monday, Nov. 6, and this is Morning Shift, POLITICO's daily tipsheet on employment and immigration policy. Send tips, exclusives and suggestions to [email protected], [email protected], [email protected] and [email protected]. Follow us on Twitter at @tedhesson, @marianne_levine, @IanKullgren and @TimothyNoah1.

NIELSEN CONFIRMATION QUESTIONNAIRE: Kirstjen Nielsen, the president’s nominee to become Homeland Security secretary, will interview today with the Senate Homeland Security and Governmental Affairs Committee staff as part of the confirmation process, according to two sources with knowledge of the meeting. Morning Shift obtained a copy of Nielsen’s pre-hearing questionnaire, in which she fielded inquiries about everything from the Deferred Action for Childhood Arrivals program to her role in the response to Hurricane Katrina in 2005. Her confirmation hearing is scheduled for Wednesday.

Asked if she favored a path to citizenship for DACA enrollees, Nielsen fudged. “Congress has a clear constitutional policymaking authority to change immigration law in order to develop a permanent solution for those individuals that were [DACA] recipients,” she wrote. “If confirmed, I will stand ready to work with Congress to provide any technical assistance needed towards a permanent, legal solution and towards enacting measures that enhance border security, interior enforcement, and our immigration system generally.”

Nielsen also fudged on whether DHS would use for enforcement purposes data supplied by DACA recipients. “If confirmed, I will ensure that DHS continues to follow the law, including federal court decisions,” she wrote. “As I understand it, since the beginning of the DACA program, information obtained from someone with deferred action has not been provided proactively except in specific circumstances such as when the individual poses a risk to national security or public safety. Should I be confirmed, I will quickly and more thoroughly assess this issue.”

Nielsen, who is currently deputy to White House chief of staff John Kelly, served as Kelly’s chief of staff during his time at DHS. She cited those experiences as proof of management experience in her questionnaire. Nielsen said she oversaw the department’s 240,000-person workforce as DHS chief of staff, directly managed 65 people and maintained budget authority for 585 personnel. She said she oversees roughly 200 people in her current White House position. Prior to joining DHS this year, she had never directly managed more than 15 people, according to the questionnaire.

The committee staff asked Nielsen about her role in the Bush administration during the response to Hurricane Katrina. Her team was cited in a critical report issued by Congress in 2006. “While on the Homeland Security Council staff I was not part of the operational or tactical chain of command for DHS and FEMA relief efforts,” she wrote. “Within my authorities and responsibilities as a Senior Director, I was effective in adjudicating interagency policy disagreements and in coordinating the resolution of open policy issues. … My goal was to support the DHS and other federal partners’ operational efforts by convening and coordinating decisions regarding policy issues so that the operators could focus on response and recovery operations. I also worked with Departments and Agencies to streamline information flow more generally so that our mutual situational awareness of what was happening was both accurate and timely.”

The nominee faced questions about her past work experience, including an association with Mannatech, a controversial health supplement company. A question from the committee asked about Nielsen’s possible work for the company from 1997-2005 and 2007-2011, including periods in 1999 and 2002 she listed as “unemployment” on a biographical questionnaire. Nielsen said she bought supplements from the company, which was linked to Ben Carson during his presidential bid, but didn’t work for them. “I purchased supplements from Mannatech on a monthly basis — I did not consider it ‘employment’ as I only used my associate membership to order products for personal use,” she wrote. “Because I received a 1099 form from Mannatech pursuant to which I paid required taxes, out of an abundance of caution, I listed it on my biographic form to the committee.”

Nielsen’s confirmation hearing will take place in Dirksen 342 at 10 a.m. Find more info about the hearing here and read the questionnaire here.

TODAY: JOINT EMPLOYER BILL TO RULES: The Rules Committee convenes today to consider a bill over what constitutes joint employment. The Save Local Business Act, H.R. 3441 (115), would repeal a broader definition of joint employment established by the Obama NLRB’s Browning-Ferris decision in 2015. A source told Morning Shift last week that amendments wouldn’t be allowed on the measure, which House Republicans would like to get to the floor this week. The Rules Committee will meet at 5 p.m. in the U.S. Capitol, H-313. Find more info here.

THIS WEEK:

HEARING ON FLRA NOMINEES: The Senate Homeland Security and Governmental Affairs Committee on Tuesday will consider the nomination of Ernest DuBester, Colleen Kiko and James Abbott to become members of the Federal Labor Relations Authority. “DuBester has been a member of the FLRA since 2009; Kiko is a judge within the Employees' Compensation Appeals Board within DOL; and Abbott served as the chief counsel to the chairman of the FLRA,” POLITICO’s Ian Kullgren wrote last week. “The FLRA is a quasi-judicial panel that mediates disputes between the federal government and federal government employee unions.” The hearing will take place in Dirksen 342 at 9:30 a.m. Find more info here.

HEARING ON LITIGATION AND JOBS: The Senate Judiciary Committee will hold a hearing Wednesday on “The Impact of Lawsuit Abuse on American Small Businesses and Job Creators.” The hearing will take place at 10 a.m. in Dirksen 226. Watch a livestream here.

A message from DoorDash: “They [DoorDash] took the initiative to reach out, to help us through COVID. [...] They’re taking this opportunity in these uncertain times to really help the small business person.” Corey Kaplan, owner Corey’s NYC Bagel Deli. Learn how DoorDash is helping independent, local restaurants across America. https://get.doordash.com/merchantimpact

DRIFTING APART ON DACA DEAL: Republicans have been staking out ground over what should be included in legislation to deal with the DACA. Trump told Fox News on Thursday that border wall funding should be part of a DACA deal, along with cutting family-based migration. In an interview with Laura Ingraham on Thursday, the president demanded a downpayment on what he estimated would be an $18 billion project at most. He also said a DACA agreement would need to address so-called “chain migration” that allows immigrants to bring family members to the U.S.

“I don't think any Republican would vote for anything having to do with leaving chain migration,” Trump said. “Chain migration is a disaster for this country and it's horrible.” Senate Majority Leader Mitch McConnell said Saturday he’s open to a deal, so long as it reforms the legal immigration system. "It could be border security. It could be ending chain migration. It could be the diversity quotas,” he said. “But something that tangibly improves the legal immigration system in this country, I think, ought to be attached to DACA.”

Top Democrats are willing to discuss border security in a DACA deal, but have said they won’t approve funding for a wall. Beyond that, the party’s more liberal senators, including Sens. Kamala Harris (D-Calif.), Elizabeth Warren (D-Mass.) and Bernie Sanders (I-Vt.), have vowed not to vote for a must-pass spending bill in December unless it addresses the status of so-called Dreamers. Trump and Senate Republicans, on the other hand, have said a DACA fix should be handled independently of the spending measure. Watch Trump’s interview here.

WHAT’S HE MEAN BY ‘23 PEOPLE’?: At a press conference last week following a terror attack in New York City, Trump said the suspect, Uzbek immigrant Sayfullo Saipov, was the "the primary point of contact" for 23 people who "came in or or potentially came in with him." The meaning of Trump’s statement wasn’t entirely clear, but he held up the statistic as a reason to cut off “chain migration,” a term used to describe immigrants who sponsor family members to come to the U.S.

Trump didn’t clear up the confusion in the interview with Ingraham last week. “He’s an animal, as far as I'm concerned,” Trump said about the suspect. “Twenty-three people have touched him, maybe came in because he was in.” Ingraham later asked if the statistic was verified. “It's what I heard, it's what I gave,” Trump said. “Whether it's 23 or whether it's two, as far as I'm concerned, it's too much, OK?” Ingraham pressed Trump to clarify. “It's a big difference, two or 23,” she said. Trump responded, but with a degree of uncertainty. “No, no, I know that. But I hear it's 23. It's a lot of people.” Watch the interview here and read a transcript from RealClearPolitics here.

THRIVENT ARBITRATION BREAK: A federal judge in Minnesota issued a preliminary injunction Friday in a case over the Obama administration’s fiduciary rule. The narrow injunction means the plaintiffs in the case will not be subject to a provision of the rule that that bans mandatory arbitration. The fiduciary rule (which requires broker dealers to consider only their client's best interest when providing retirement advice) went partly into effect in June, but the rest of the rule remains in limbo. The Labor Department plans to delay its implementation by 18 months, and sent a rule to the Office of Management and Budget last week to that end.

The plaintiffs in the aforementioned case, the Minneapolis-based Thrivent Financial, urged the court in September to block the arbitration clause. The clause prohibits financial advisers from requiring their clients to waive their right to bring class-action lawsuits. The DOL opposed the move to block the arbitration clause since the regulation remains under review. In a memorandum opinion and order issued Friday, U.S. District Judge Susan Richard Nelson also stayed proceedings at the request of the Labor Department. Read the order here.

HARASSMENT INSURANCE: The sexual harassment allegations against film executive Harvey Weinstein and other powerful male media industry leaders may seem unexpected, but businesses often prepare for such a scenario, Danielle Paquette reports in the Washington Post. “Companies have dramatically increased their insurance coverage against sexual harassment complaints in recent years following high-profile scandals, as corporate America reckons with the growing risks of workplace misconduct,” she writes.

“Employment practices liability insurance (EPLI) plans, which cover sexual harassment, racial discrimination and wrongful-firing claims, have spread rapidly over the past decade from major corporations to midsize and smaller firms, industry experts say,” the Post reports. “But lawyers and some women’s groups say the policies, which shield businesses and executives from costly lawsuits and reputational damage, may also help perpetuate abuse by allowing companies to avoid confronting the problem head-on.” More here.

KY SPEAKER RESIGNS OVER HARASSMENT CLAIM: “Jeff Hoover resigned his post as speaker of the Kentucky House of Representatives Sunday, a day after defiantly rejecting calls to step down by [Republican] Gov. Matt Bevin and others who said they were disgusted by allegations of sexual harassment against Hoover and three other GOP lawmakers,” the Lexington Herald Leader reports.

“A tearful Hoover, with family members looking on, acknowledged that he had ‘engaged in inappropriate text messages’ with a legislative staffer in his office and asked the people of Kentucky ‘to forgive me for my actions,’” the Herald Leader’s Jack Brammer and Beth Musgrave report. “A Jamestown attorney who has been in the House since 1997, Hoover said he never engaged in ‘unwelcome or unwanted conduct’ and ‘at no time were there ever any sexual relations of any kind.’”

The Kentucky House flipped to Republican control in November for the first time since 1920. Hoover’s tenure as speaker came to an abrupt end Sunday night, however. “The Courier Journal reported Wednesday that Hoover had secretly settled a sexual harassment claim brought against him by a staffer in his office,” write Brammer and Musgrave. “On Saturday, the Herald-Leader reported that the claim had also alleged harassment by three other lawmakers: Rep. Brian Linder of Dry Ridge; Rep. Michael Meredith of Oakland and Rep. Jim DeCesare of Bowling Green.”

The additional three lawmakers will be removed from committee posts pending an internal investigation, the Herald Leader reports. Hoover said he would remain in his position as a Kentucky House representative. More from the Herald Leader here.

NEW REPUBLIC PUBLISHER RESIGNS: “Hamilton Fish, the president and publisher of The New Republic, [resigned Friday] from the magazine after allegations of inappropriate conduct,” Sydney Ember reports in the New York Times. “The move came less than a week after Mr. Fish was asked to take a leave of absence pending an investigation into recent complaints from women about their interactions with him.”

Fish addressed his resignation in a letter to the magazine’s owner, Win McCormack. “As I understand it, some employees, to my deep dismay, complained this week that my presence had led them to feel uncomfortable at The New Republic,” he wrote, according to the Times. “It’s my sense that our office culture has been harmed, and the best way for me to help the organization move past this is by withdrawing.” More here.

PRINCETON, MICROSOFT FILE DACA SUIT: Princeton University, a student and Microsoft joined forces Friday to file a lawsuit against the Trump administration over its decision to phase out the DACA program. The plaintiffs argue the decision to terminate the program violated the Administrative Procedure Act, saying the policy change should have been subject to a period of notice and public comment. The parties also contend the DACA move ignores the Fifth Amendment and denies program enrollees equal protection under the law. In the complaint, they argue Princeton “will suffer the loss of critical members of its community” if the administration ends the program. Read an announcement from Princeton here and the complaint here.

MCSALLY HIT OVER IMMIGRATION STANCES: The prospect that Rep. Martha McSally (R-Ariz.) could jump into a Republican Senate primary provoked attack ads over her past immigration votes, Eliza Collins reports in USA Today. McSally reportedly has considered joining a primary race for the seat currently held by Sen. Jeff Flake (R-Ariz.), who announced last month that he would not seek reelection in 2018. Kelli Ward, a physician and former state senator, has already won the endorsement of former Trump chief strategist Steve Bannon.

“Great America Alliance rolled out amnestymartha.com on Friday, which also includes an ad the group will be running digitally,” Collins reports. “The group has endorsed Ward and Eric Beach, who chairs the group, works as a strategist for Ward’s campaign. Friday's ad hits McSally for votes it says reveal she supports ‘amnesty for illegals.’” The ad cites a McSally vote against a 2015 appropriations bill amendment that would have defunded the DACA program, among other stances. More here.

TRUMP GUEST-WORKER WATCH: The Mar-a-Lago resort owned by President Trump received permission to hire 70 foreign workers as maids, cooks and servers, the Palm Beach Post reported Friday. The business applied to bring workers to the United States through the H-2B visa program. Back in July, BuzzFeed reported that Trump-owned or -branded businesses sought to hire at least 370 guestworkers since he launched his campaign in June 2015. More from the Palm Beach Post here.

COFFEE BREAK

—“Analysis: booming labor market could pose challenge for Powell and the Fed,” from the Wall Street Journal

—“Some middle-class Americans would pay higher taxes under GOP bill, despite Trump’s promise,” from the Washington Post

— “American Airlines inks $9.8M disability deal with EEOC,” from Law360

—“Trump, Democrats vie with McCain on whether Pentagon should ‘Buy American,’” from the Washington Post

—“10-year-old immigrant who was detained after surgery is released,” from the New York Times

—“Building A.I. that can build A.I.,” from the New York Times

—“Brazil becomes Uber’s latest regulatory battleground,” from the New York Times

—“America’s most powerful woman is losing her job. What that means,” from the Washington Post

—“Immigration detention of Cambodian nationals who came as refugees,” from NBC News

THAT’S ALL FOR MORNING SHIFT.

Follow us on Twitter Rebecca Rainey @rebeccaarainey