55 Pages Posted: 6 May 2009 Last revised: 13 Dec 2016
Date Written: 2009
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.
Keywords: 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
JEL Classification: J21, J23, J30, J38, J50, J58, J61, J70, J71, J78, K31, K39, K42
Suggested Citation: Suggested Citation
Cunningham-Parmeter, Keith, Redefining the Rights of Undocumented Workers (2009). American University Law Review, Vol. 58, p. 1391, 2009. Available at SSRN: https://ssrn.com/abstract=1398525