Fractured Membership: Deconstructing Territoriality to Secure Rights and Remedies for the Undocumented Worker

Abstract

Relied upon but unwelcome, among us but uninvited, undocumented workers in the United States – now numbering over 8 million – labor on the border of inclusion and exclusion, between a status-based conception of membership and a territorial approach to membership. Although mere presence in the U.S. secures undocumented workers many of the same labor protections afforded to authorized workers, undocumented status often forecloses certain remedies otherwise available for employer breaches of those protections. Many commentators have criticized this effective status-based denial of rights to undocumented workers as inimical to the goals underlying labor and immigration law. While this Article echoes some of those sentiments, its purpose is broader.

This Article bases its critique of the slow encroachment of a status-based conception of membership into the employment sphere on its failure to recognize fundamental indicators of membership, including an individual’s ties to the surrounding community, that have historically shaped notions of membership. However, this Article does not advocate the use of the historically dominant territorial model, which distributes rights based on mere territorial presence. It suggests that territoriality, applied in an increasingly globalized world in which relationships and obligations are not dictated by physical borders, can no longer adequately answer questions of membership. Rather, this Article offers a more principled, nuanced approach – one that arguably is already emerging outside the employment context – derived from territoriality’s underlying rationales but stripped of that approach’s fixation on geography, to secure the rights of undocumented workers.

Keywords: immigration, illegal alien, undocumented immigrant, labor, employment, undocumented worker, unauthorized worker, Hoffman, backpay, territoriality, post-territoriality