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Abstract:
Do you have papers? Immigrant workers increasingly face this question in civil litigation. Citing the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, which stated that undocumented immigrants cannot recover monetary damages for labor law violations, employers argue that many employment protections no longer apply to this group of workers. Consistent with this argument, employers pose immigration-related questions during discovery, causing an already uneasy class of plaintiffs to cease suing employers in order to avoid answering questions about their immigration status. Professor Cunningham-Parmeter explains how status-based discovery not only inhibits immigrant employees from vindicating their workplace rights but also undermines the employment protections at issue. Without an effective method for controlling the flood of status-based inquiries born of Hoffman, immigrants will continue to opt-out of civil litigation, unwilling to assert even the strongest claims for workplace violations.

Cunningham-Parmeter argues that immigrants can largely combat the intimidating effects of status-based discovery by properly invoking their privilege against self-incrimination. He contends that the policies in support of extending the privilege to the civil context play a prominent role in immigrant-initiated litigation. Civil libertarian values traditionally associated with the privilege such as fairness, privacy, and the prevention of cruelty are threatened when courts grant defendants unfettered access to status-based discovery. After outlining the policies and principles of the privilege, Cunningham-Parmeter explains the process and potential consequences of invocation, including the adverse inferences a court may draw from the witness's silence. Cunningham-Parmeter outlines factors counseling against adverse inferences such as the unreliability of silence and the irrelevance of immigration status to most employment claims. Even if courts infer that silent plaintiffs are undocumented immigrants, Cunningham-Parmeter argues the outcome would improve the current amorphous state of affairs; following Hoffman courts have failed to clearly delineate the employment rights and remedies available to unauthorized immigrants. The inference analysis forces courts to declare whether immigration status matters to the claims at issue. Thus, the privilege serves both protective and explanatory functions by guarding the witness's status-based information, while requiring a determination of immigrant-based employment rights in the post-Hoffman era.

immigration,alien,citizen,worker,illegal,race,national,origin,discrimination,Hoffman,retaliation,employ,Title VII,NLRA,FLSA,IRCA,labor,work,INS,DHS,Congress,policy,deportation,removal,courts, federal,chilling,intimidation,rights,discovery,privilege,privacy,inference,self-incrimination,preemption

Abstract:
Should a nation extend legal rights to those who enter the country illegally? The Supreme Court recently addressed this question when it held that unauthorized immigrants who are fired illegally for unionizing cannot recover monetary remedies. This has led to a significant decline in employment protections for unauthorized immigrants beyond the unionized sector. For example, some courts now question whether unauthorized immigrants can receive full remedies for sexual harassment, workplace discrimination, or on-the-job injuries.

Scholars have criticized these losses but have yet to formulate a coherent framework for evaluating the employment rights of unauthorized immigrants. This article does so by distilling and applying several core principles at issue when employment laws conflict with immigration laws. I begin by explaining how the text and purpose of selected immigration and employment statutes show that Congress never intended to restrict unauthorized immigrants’ employment rights. Remedial restrictions not only harm the workplace protections at issue, they fail to discourage illegal immigration. Thus, neither legislative intent nor national immigration goals justify limiting the workplace remedies available to unauthorized immigrants.

Although the future rights of unauthorized workers will turn partly on the issues of statutory purpose and immigration policy discussed in the early sections of the article, equally important are the consequences of diminished rights. Accordingly, I conclude the article by explaining why restricting workplace protections based on status harms citizens as well as immigrants. I contend that employment protections are “rights of partial inclusion” that reflect a distinctive sphere - the workplace - where unauthorized immigrants should be placed on par with citizens in pursuing collective interests. In contrast to arguments that favor limiting resources to lawful residents, partial inclusion explains how employment protections can effectively preserve national identity while simultaneously enhancing unauthorized immigrants’ incentives for social investment. In doing so, partial inclusion furthers the community’s self-definition, while providing unauthorized immigrants with a sense of belonging in a world increasingly focused on their exclusion.

immigration, reform, alien, citizen, worker, illegal, race, national, origin, discrimination, Hoffman, Title VII, NLRA, FLSA, IRCA, labor, work, INS, ICE, Congress, policy, deportation, removal, courts, federal, rights, membership, belonging

Abstract:
Agricultural exceptionalism and inconsistent regulatory enforcement continue to weaken workplace protections for farmworkers. Although empowered to promulgate pesticide safety regulations by the Federal Insecticide, Fungicide, and Rodenticide Act, the EPA has failed to reduce pesticide exposure among farmworkers, who experience the highest rate of chemical-related, occupational disease in the country. In the wake of this administrative breakdown, the article analyzes the most promising common law theories for compensating victims of pesticide exposure. After evaluating a number of tort claims, the article predicts that future pesticide litigation will be brought under a design defect products liability theory incorporating a risk-utility test. Preemption defenses and problems of proving causation are analyzed, as are the practical problems of litigating cases involving acute and chronic injuries. Despite the acknowledged limitations of tort actions, mounting liability may provide an incentive for employers and manufacturers to improve field protections, thereby raising occupational safety standards to a level that the administrative state has been unable to achieve.

farmworker, pesticides, FIFRA, products liability, regulation, preemption, administrative law, environmental law, migrant workers, human rights, Mexico

Abstract:
Members of the latest generation of law firm associates state that their primary professional goal is attaining a work-family balance. Firms have responded to these demands by implementing superficial family-friendly policies such as paternity leave and part-time schedules, which male lawyers have failed to utilize. The article analyzes the structural and cultural barriers within the legal workplace that keep men from adopting part-time schedules. The male lawyer's double-bind is outlined, as are the gender effects suffered by women, who, in light of the male absence on the part-time front, have become the sole users of the firms' flexible work policies. Finally, the article makes an economic case for modified work schedules and describes how a model law firm could function. Elite firms must address all of these factors--workplace structure, firm culture, and recruitment/retention economics--if they are to move beyond gendered paradigms and genuinely support men in their roles as lawyers and fathers.

gender, work conflict, family, fatherhood, law firms, fmla, family leave, flexible work arrangements, work-family, organizational change, work redesign, family policies, employment

Abstract:
Most claims of ineffective assistance of counsel analyzed under Strickland v. Washington fail because defendants are unable to prove that they were prejudiced by defense counsel's deficient performance. Examining three federal appellate decisions involving lawyers who slept during trial, the article constructs a working test for presuming prejudice when a lawyer has been categorically non-functional. The test evolves from United States v. Cronic, which holds that prejudice to a defendant should be presumed when there has been a constructive denial of counsel. The article engages in a detailed investigation of several key terms from Cronic, including "constructive denial," "absence," and "meaningfully adversarial testing." Additionally, the article proposes several applications of the test to cases in which a defense lawyer remained silent throughout an entire trial or was affected by a severe mental disorder or drug impairment. In doing so, the article offers an original examination of Cronic, while defining a flexible, practical standard for evaluating claims of ineffectiveness based on representational absence.

right to counsel, effective assistance, Strickland, Sixth Amendment, Cronic, sleeping lawyers