Although undocumented workers don't have legal status in the United States, they should be afforded full protection under employment and labor laws, writes a Brigham Young University law professor in the new issue of the University of Wisconsin Law Review.
D. Carolina Núñez, associate professor at BYU’s J. Reuben Clark School of Law, argues that undocumented workers should be considered full “members” of the employment protection franchise. Her article is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646497
"I explore the limitations undocumented workers encounter when they pursue federal and state labor law claims," Núñez said. "Although employment laws often include undocumented immigrants as protected individuals, they do not always have access to the same remedies that documented workers have.
“For example, while a documented worker may collect workers’ compensation benefits after being injured on the job, an undocumented worker might find that she is entirely foreclosed from collecting those benefits and therefore has little leverage to enforce that very same right."
In the past, U.S. courts used the U.S. border to mark the dividing line between those who have membership rights and those who do not.Under this territorial conception of membership, individuals present in the U.S., regardless of status, have enjoyed the same rights and privileges.
Outside the employment sphere, Núñez argues, this territorial approach to membership is slowly giving way to a more nuanced approach in which courts ask more probing questions about an individual’s membership: Does this person have ties to the surrounding community? Has he subjected himself to U.S. law such that the U.S. owes him corresponding protections? Will excluding him from membership rights result in the perpetuation of an underclass?
Within the employment sphere, however, some courts have rejected this post-territorial approach in favor of a status-based model in which workers receive membership rights based solely on legal status. Núñez laments this for many reasons, including the potential for creating a sub-class of U.S. workers powerless to enforce basic labor protections. This, in turn, may further incentivize employers to hire and exploit undocumented workers and, more importantly, alter the character of American society.
"It is important to recognize that territoriality is fading and prevent the status-based approach from filling the vacuum left behind by territoriality," Núñez said. "The relevant question is whether an individual is a member of the labor and employment sphere. Legal status is not a very good indicator of membership in this sphere."
Núñez hopes this paper will spark additional discussion on the issue of membership and rights and inject a new perspective into the debate about undocumented workers.
Writer: Lisa Anderson/Stephanie Hunt