POLITICO's Morning Shift: Exit O'Reilly — Miners frustrated by Trump's silence — DACA on thin ice?

By Ted Hesson | 04/20/2017 10:00 AM EDT

With help from Marianne LeVine, Ian Kullgren, Benjamin Wermund and Timothy Noah

EXIT O'REILLY: Fox News on Wednesday let go of its biggest star, Bill O'Reilly, two and a half weeks after the New York Times revealed that the cable news channel and O'Reilly had paid out a combined $13 million to five women to settle sexual harassment claims against him. In a written statement, 21st Century Fox, parent company to Fox News, said that "after a thorough and careful review of the allegations, the company and Bill O'Reilly have agreed that Bill O'Reilly will not be returning to the Fox News Channel."

"A thorough and careful review of the allegations"? Morning Shift has difficulty imagining that Fox News would fork over millions of dollars in settlement fees without first reviewing the allegations pretty thoroughly and carefully. And that would have been well before publication of the Times story. Fox's initial response to this presumed thorough and careful review, the Wall Street Journal reported earlier this month, was to renew O'Reilly's contract (reportedly for about $18 million annually). The only new thorough and careful review left to do in April would have been to assess the financial damage as more than 50 advertisers responded to the Times story by dropping O'Reilly's program. "Inside the company," report the Times' Emily Steel and Michael Schmidt, "women expressed outrage and questioned whether top executives were serious about maintaining a culture based on 'trust and respect,' as they had promised last summer when another sexual harassment scandal led to the ouster of Roger E. Ailes as chairman of Fox News."

In a statement, O'Reilly said that "it is tremendously disheartening that we part ways due to completely unfounded claims ... but that is the unfortunate reality many of us in the public eye must live with today." He added: "I wish only the best for Fox News Channel." Read more from the Times here.

GOOD MORNING. It's Thursday, April 20, and this is Morning Shift, POLITICO's daily tipsheet on employment and immigration policy. Send tips, exclusives, and suggestions to thesson@politico.com, mlevine@politico.com, mleonor@politico.com, ikullgren@politico.com and tnoah@politico.com. Follow us on Twitter at @tedhesson, @marianne_levine, @MelLeonor, @IanKullgren and @TimothyNoah1.

MINERS FRUSTRATED BY TRUMP'S SILENCE: Retired coal miners who worked for bankrupt coal companies feel increasingly frustrated with President Donald Trump's failure to say publicly whether he supports a congressional plan to shore up health care benefits, Noam Scheiber reports in the New York Times. In December, Congress passed a continuing resolution that included a provision to shift funds in the multiemployer health plan to prevent the miners from losing their health benefits immediately. But that fix provided funding only through the end of this month. Although Senate Majority Leader Mitch McConnell favors a permanent fix, House Speaker Paul Ryan prefers one that would keep the plan solvent only 20 months.

Sen. Joe Manchin (D-W.Va.) told the Times that Ryan's 20-month proposal is "perfectly lined up with the 2018 election." Manchin said Republicans wanted a short-term fix so that a Republican challenger for his seat "could claim credit for yet another extension." Read more.

'MEXICAN HERITAGE' JUDGE TO TAKE DACA CASE: The federal judge once accused by then-presidential candidate Trump of bias against him because of his "Mexican heritage" will hear the high-profile case of a Dreamer deported in February. Back in June, Trump said U.S. District Judge Gonzalo Curiel could not fairly consider civil fraud lawsuits against Trump University because of his background (Curiel was born in Indiana to Mexican immigrant parents). "I'm building a wall," Trump told the Wall Street Journal. "It's an inherent conflict of interest." Trump escalated his attacks for a few days before he finally issued a non-apology, saying his comments about the judge were "misconstrued."

Now they meet again. Curiel will preside over a lawsuit brought by Juan Manuel Montes, a 23-year-old enrollee in the Deferred Action for Childhood Arrivals program who claims he was wrongfully deported by federal immigration authorities in February - the first instance of a DACA participant removed from the country. According to Montes, he was arrested, detained and deported to Mexico on February 18 by U.S. Customs and Border Protection officers despite his DACA status. When he tried to cross the border to California a day later, he was caught again. The facts of the case remain in dispute - the Homeland Security Department said it has no record of the initial deportation (it does acknowledge that he was arrested crossing into the U.S. from Mexico, however).

To further confuse matters, DHS said Tuesday that Montes' DACA enrollment expired in August 2015. The department issued a correction yesterday and said that "after a detailed records search" it discovered that his DACA status would have been effective until January 2018. DHS said that Montes "never mentioned that he had received DACA status" when he was taken into custody crossing from Mexico to the U.S. As DHS sees it, Montes violated his status when he left the U.S. without permission. Read more about Curiel and the DACA case from USA Today here.

DACA ON THIN ICE? The Trump administration has continued to process applications for DACA, but the program's future has looked cloudy in recent days. Attorney General Jeff Sessions told Fox News Wednesday that "DACA enrollees are not being targeted," but wouldn't guarantee they'll be protected. "We can't promise people who are here unlawfully, that they're not going to be deported," he said. That appeared to contradict Homeland Security Sec. John Kelly, who said in late March that the government had an obligation to honor the terms of the program.

"If you read between the lines ... what [Sessions] is saying is we're going to deport whomever we get our hands on," said David Leopold, an immigration attorney and former president of the American Immigration Lawyers Association. "DACA is an exercise of discretion, it's an exercise of grace, basically, by the government." If the administration is deporting Dreamers, Leopold said, it casts doubt on whether it's still committed to the program.

TODAY: SESSIONS AND KELLY AT THE BORDER: Perhaps Sessions and Kelly can get their DACA stories in line during a scheduled visit to the border Thursday and Friday. The trip is an opportunity to further publicize the threat of drug cartels and transnational criminals (see a sample from Kelly here and Sessions here ). According to DHS, the pair will first visit El Paso, Texas, where they'll observe border operations, meet with personnel and hold a media availability at 3:30 p.m. ET. On Friday, they'll visit San Diego, where they'll be joined by Sen. Ron Johnson (R-Wis.), chairman of the Senate Homeland Security and Governmental Affairs Committee. They'll hold a second press conference at Border Field State Park at 7 p.m. ET.

THE TIPPING POINT: The Ninth Circuit will hear a case today addressing when employers must pay full minimum wage instead of the tipped minimum. The case involves servers at P.F. Chang's who argue they should have received the full minimum for time they spent on non-tipped tasks, like food preparation, cleaning and maintenance. The lower court dismissed the servers' case, prompting an appeal.

In their opening brief, the servers argued that when an employer "uses tipped employees to perform unrelated non-tipped work ... but still pays the employees only $2.13 per hour, the employer violates the [Fair Labor Standards Act]." In addition, the servers cite a section in the Labor Department's field operations handbook that states an employee who spends more than 20 percent of his or her time on non-tipped work should receive the full minimum wage for that time.

P.F. Chang's disagreed. The company's brief argued that Congress defined a tipped employee as "any employee engaged in an occupation in which he customarily receives more than $30 a month in tips." The brief noted that the servers received more than $400 a month in tips. In addition, the company argued that the "20 percent" standard "is fatally inconsistent with the clearly stated intent of Congress" and that the court owes no deference to it. Read the servers' brief here and P.F. Chang's brief here.

BANNON RECOMMENDED ACOSTA: White House chief strategist Steve Bannon, who has lately been on the outs, recommended replacing former Labor secretary nominee Andrew Puzder with Alexander Acosta, according to the Washington Post. Following Puzder's withdrawal, Bannon (who was never keen on Puzder) walked into the Oval Office and recommended Acosta, the Post said. In response, the White House's personnel team "immediately met with him, shifted gears, and Trump nominated [Acosta] for Labor secretary."

Fortunately for Acosta (who has not yet been confirmed), Bannon wasn't his only sponsor inside the White House. Leonard Leo, executive vice president of the Federalist Society, said in a statement following Acosta's nomination that he had "indispensable support from [White House] Counsel Donald McGahn, who had his eye on him as early as the summer months." The Senate is expected to give Acosta the thumbs-up next week. More from the Post here.

SEIZE THE VISA MOMENTUM: Senate Judiciary Chairman Chuck Grassley (R-Iowa) and Sen. Patrick Leahy (D-Vt.) issued a statement pledging their continued commitment to reform of the EB-5 investor visa program. The EB-5 program allows foreigners who invest $500,000 in a high unemployment area to apply for a green card, but it's been criticized as susceptible to fraud and abuse by sham investment companies and officials who stretch the program's intent.

Grassley and Leahy sent a letter earlier this month to Senate and House leaders to oppose EB-5 reauthorization in the spending bill unless it's accompanied by reforms. They were joined by Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.), and House Judiciary Chairman Bob Goodlatte (R-Va.), and Ranking Member John Conyers (D-Mich.). "We have repeatedly expressed our concerns that this program is riddled with fraud and raises national security concerns," the group wrote in an April 6 letter. "Moreover, the program's core purpose - directing investment to rural and high unemployment areas - has been eroded due to years of abusive gerrymandering practices."

THE WRONG LOCATION FOR A VISA SPEECH: Trump's visa reform announcement Tuesday (wherein he declared that low-wage foreign guest workers would not be permitted to displace U.S. workers) turns out to have been delivered in an inconvenient setting: Snap-on, a Kenosha, Wisc.-based company that pays below-average wages to foreign guest workers here on H-1B visas.

The Washington Post's Tracy Jan reported that Snap-on last year applied to the Labor department for H-1B visas for a computer programmer and a computer systems analyst, and that Snap-on proposed to pay the guest workers below-average wages. Morning Shift confirmed that these workers' visas were approved and that they came to work at the company. "Snap-on said it would pay the computer programmer $75,000 a year, according to the application filed with the Department of Labor Office of Foreign Labor Certification," the Post reported. "That salary falls well below the average wage of $94,000 for a computer programmer in Santa Clara County, according to a Labor Department wage database."

Under the H-1B program's guidelines, Snap-on must pay the "prevailing wage," or the average wage for that occupation in a certain location. The prevailing wage, however, spans four levels. The minimum prevailing wage for a "level one" computer programmer in San Jose (where the positions are based) was $52,000 a year; the minimum for a "level two" programmer was $73,000; and so on. Ron Hira, an associate professor at Howard University, explained to Morning Shift that something like 80 percent of the labor applications completed for H-1B visas are at the bottom two rungs of the payscale. That's difficult to jibe with the idea that H-1B workers possess unique skills that can't be found among U.S. workers. Read more from the Post here.

CHASE WILL INVEST $8.6M TO FILL HEALTH CARE JOBS: JP Morgan Chase will give out $8.6 million in grants to fill jobs in the healthcare sector, the company said today. The grants will go toward training and apprenticeship programs as well as data-driven research "to better understand the barriers that employers and job seekers face." In a statement, Chauncy Lennon, head of the company's workforce initiatives, said the company hopes to train workers to fill "well-paying, high-demand healthcare jobs" and improve the U.S. economy.

FED REPORT: TIGHT LABOR MARKET PRESSURES WAGES: A new report from the Federal Reserve finds that the tightening labor market is putting upward pressure on wages, Ben Leubsdorf and Sarah Chaney report in the Wall Street Journal. The report found that in some regions "worker shortages and increased labor costs were restraining growth in some sectors, including manufacturing, transportation and construction." In addition the report said that "modest wage increases broadened" and that "employers in most districts had more difficulty filling low-skilled positions, although labor demand was stronger for higher skilled workers." Read more.

NLRB INACTION DOOMED INVESTIGATIVE RULE - FOR NOW: Democrats may have missed their chance to change a Bush-era decision on an employee's right to bring a co-worker into an investigative interview, Bloomberg BNA reports. According to BNA, the NLRB has reversed course on the issue four times in the past 35 years. The last time was in 2004, when the board said non-union employees didn't possess the right. Now, with Trump in the White House, Democrats will have to wait at least several more years to make a change. Read more.

COFFEE BREAK

-"Meet the foreign tech workers left in limbo by Trump," from The New York Times

-"Writers Guild strike authorization meetings continue with Beverly Hills confab," from the Hollywood Reporter

- "Emirates cuts flights to U.S. following electronics ban, visa restrictions," from The Wall Street Journal

- "Amazon pays German warehouse workers bonuses partly based on when their coworkers call in sick," from Quartz

- "Mother of four deported to Mexico as lawyer decries Trump's 'heartless policy,'" from the Guardian

-"Bill to regulate Uber, Lyft statewide gets green light from Texas House," from the Dallas News

- "The 'America first' crowd should think twice before celebrating the drop in H-1B applications," from Quartz

THAT'S ALL FOR MORNING SHIFT.

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