28 Pages Posted: 20 Jan 2016
Date Written: January 19, 2016
Many immigrants’ rights advocates and scholars have recognized the undocumented worker exploitation that takes place when immigration restrictions enter the workplace, which create incentives for employer misconduct and increase the vulnerability of workers without status. However, little has been discussed about the broader implications of the currently expansive immigration enforcement regime for a general theory of free labor rights, which is derived from the 13th Amendment and other labor and employment laws. Historically, the advancement of free labor (and the prevention of illegitimate coerced labor) relied on legal interventions that prohibited servitude and promoted workplace protections to ameliorate power inequities between the employer and worker. Although these protections theoretically apply regardless of citizenship status, due to their illegality under immigration laws, undocumented workers often accept substandard conditions out of fear of the alternative — deportation. This Article suggests that when workplace alternatives are constrained to this degree, a free labor problem arises. Drawing from scholarship addressing free labor theory and research at the intersection of immigration law and workplace rights, this Article highlights the structurally coercive effects of immigration restrictions in the workplace. Coercion persists in the undocumented workplace, not because of inadequate employment and labor protections, but because immigration policies have created a criminal class of workers, who are denied remedies for workplace exploitation because their illegality renders them consensual in the workplace exploitation. This contract-based conception of undocumented labor perceives undocumented workers as engaging in a collusive relationship with their employers, in which they freely comply with substandard working conditions and voluntarily remain in the U.S. without legal status. The notion that these workers willingly accept their exploitation nullifies their coercion claims, fueling the law’s continued preference of immigration enforcement over labor rights and rendering the assertion of labor rights ineffective. Free labor rights seek to correct coercion in the workplace. Yet, the illegality of undocumented workers places them beyond coercion or outside the protection of free labor remedies.
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