Labor law after legalization

Minnesota Law Review

Volumn 92, Issue 5, 2008, Pages 1446-1461

  Wishnie, Michael J ^a,b  

^a YALE UNIVERSITY   (United States)

^b Labor Law Group

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EID: 46849092812     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (113)

1. H.R. 800, 110th Cong, (as passed by House of Representatives, Mar. 1, 2007);
2. S. 1041, 110th Cong. (2007). The Senate vote to invoke cloture failed on June 26, 2007.
3. See 153 CONG. REC. S8398 (daily ed. June 26, 2007).
4. See H.R. 800;
5. S. 1041;
6. see also National Labor Relations Act, 29 U.S.C. §§ 151-169(2000).
7. S. 1348, 110th Cong, (as introduced in Senate, May 9, 2007).
8. See Immigration Bill Dies in the Senate, CHI. TRIB., June 29, 2007, at 18 (describing the bipartisan nature of the bill and President Bush's support for it).
9. See S. 1348 (reflecting the original bill as introduced in the Senate). A cloture vote on the original bill failed to pass on June 7, 2007. 153 CONG. REC. S7279 (daily ed. June 7, 2007).
10. A compromise bill, S. 1639, 110th Cong. (2007), was reintroduced on June 18, 2007.
11. See also 153 CONG. REC. S8528 (daily ed. June 27, 2007) (statement of Sen. Feinstein). A few senators filibustered the reintroduced bill when it was taken up on June 27, 2007.
12. See id. at S8642-43 (daily ed. June 28, 2007) (statement of Sen. Specter) (discussing the use of Senate procedure by some senators to kill the bill);
13. see also id. at S8526 (daily ed. June 27, 2007). A cloture vote to end the filibuster failed on June 28, 2007.
14. Id. at S8650-51 (daily ed. June 28, 2007).
15. S. 1639, §§ 601-627 (defining the proposed legalization program).
16. Id. §§ 401-427 (reflecting the proposed temporary worker programs).
17. Id. §§ 101-150 (outlining the proposed border security measures);
18. id. §§ 201-229 (delineating the proposed increase in interior enforcement and penalties);
19. id. §§ 301-310 (reflecting the proposed worksite enforcement, online verification amendments, and penalties).
20. The disputes included whether prior use of false papers would bar legalization, see 153 CONG. REC. S7113-14 (daily ed. June 6, 2007) (statement of Sen. Kennedy) (discussing the effect of a proposed amendment and false papers), whether persons would have to return to their country of origin to "touchback" before lawfully reentering the United States,
21. see id. at S6601 (daily ed. May 24, 2007) (statement of Sen. Lincoln), and the length of time persons would have had to reside in the United States to become eligible for legalization,
22. see id. at S7288-89 (daily ed. June 7, 2007) (statement of Sen. Webb).
23. See id. at S6941 (daily ed. May 25, 2007) (statement of Sen. Sessions) (discussing the duration of time persons would have to spend in temporary lawful status before becoming eligible to apply for permanent residence).
24. For instance, we know from experience with the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of 8 U.S.C), that wages rose significantly for newly legalized workers. See Sherrie A. Kossoudji & Deborah A. Cobb-Clark, Coming out of the Shadows: Learning About Legal Status and Wages from the Legalized Population, 20 J. LAB. ECON. 598, 622 (2002) ("Although they are not definitive, our results provide strong evidence that IRCA's amnesty provisions improved the labor market opportunities for legalized workers.");
25. Francisco L. Rivera-Batiz, Undocumented Workers in the Labor Market: An Analysis of the Earnings of Legal and Illegal Mexican Immigrants in the United States, 12 J. POPULATION ECON. 91, 93 (1999) (noting the wage penalty attributable to lack of immigration status).
26. Cf. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 140 (2002) (holding that an undocumented worker who tendered false documents and was illegally fired for union organizing activity was not eligible for back pay under the National Labor Relations Act);
27. Catherine L. Fisk & Michael J. Wishnie, The Story of Hoffman Plastic Compounds, Inc. v. NLRB: Labor Rights Without Remedies for Undocumented Immigrants, in LABOR LAW STORIES 399, 399-400 (Laura J. Cooper & Catherine L. Fisk eds., 2005) (discussing the comparatively weak legal rights of undocumented workers).
28. See, e.g., Zeng Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191, 191-93 (S.D.N.Y. 2002) (holding that a worker may recover unpaid minimum wages and overtime for work actually performed, regardless of immigration status);
29. Balbuena v. IDR Realty LLC, 845 N.E.2d 1246, 1260 (N.Y. 2006) (holding that where an employer failed to verify an employee's work authorization, and the employee did not tender false documents, the undocumented worker was eligible for compensation under the state Scaffolding Law).
30. Cf. Rivera v. Nibco, Inc., 364 F.3d 1057, 1064 (9th Cir. 2004) (noting that fear of deportation deters noncitizens from enforcing labor and employment rights they possess);
31. Michael J. Wishnie, Immigrants and the Right to Petition, 78 N.Y.U. L. REV. 667, 669-70 (2003) (same).
32. See, e.g., Int'l Ass'n of Chiefs of Police, Enforcing Immigration Law: The Role of State, Tribal and Local Law Enforcement 5 (2004) http://www.theiacp.org/documents/pdfs/Publications/ ImmigrationEnforcementconf%2Epdf.
33. See, e.g., NAT'L IMMIGRATION FORUM, WHILE DEBATE RAGES, THE PUBLIC CONTINUES TO SUPPORT REALISTIC IMMIGRATION REFORM 1-7 (2007), http://www.immigrationforum.org/documents/PressRoom/ PublicOpinion/2007/PollingSummary0407.pdf.
34. Internal divisions within the labor movement have decreased its effectiveness in the immigration debate. Compare AFL-CIO Executive Council Statement, Responsible Reform of Immigration Laws Must Protect Working Conditions for All Workers in the U.S. (Mar. 1, 2006), available at http://wwwxalaborfed.org/pdfs/Legislative/AFL%20immpol.pdf (opposing the expansion of temporary-worker programs),
35. with Letter from Anna Burger, Chair, Change to Win, to Sen. Arlen Specter, Chairman, Senate Judiciary Comm. (Feb. 2, 2006), available at http://www.changetowin.org/for-the-media/op-eds-articles-and -speeches/immigration-letter-from-anna-burger-to-arlen-specter.html (recognizing a potential role for temporary-worker programs in a comprehensive reform package and urging specific terms).
36. There has been almost no public discussion whatsoever of the situation of undocumented workers after comprehensive immigration reform. This is understandable in political terms-proponents of reform must present any legislation as substantially addressing the current failures of our immigration system, and may not want to highlight the problems that will inevitably remain even were Congress to pass broad reforms.
37. JEFFREY S. PASSELL, THE SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S., at i (Pew Hispanic Ctr. ed., 2006), available at http://pewhispanic.org/files/reports/61.pdf (estimating that the size of the unauthorized population in the United States stood between 11.5 and 12 million people in March 2006).
38. Id. at 2. Between 2000 and 2005, approximately 850,000 persons entered the United States unlawfully or overstayed a visa each year; but several hundred thousand died, departed, or regularized their status each year, yielding a net increase in the undocumented population of approximately 500,000 persons annually.
39. Id. at 2-3;
40. see also Jennifer Van Hook et al., Unauthorized Migrants Living in the United States: A Mid-Decade Portrait, MIGRATION INFO. SOURCE, Sept. 2005, http://www.migrationinformation.org/ Feature/display.cfm?id=329 (estimating that between 2000 and 2004, two hundred thousand to three hundred thousand undocumented immigrants annually "leave the United States, die, or become legal immigrants").
41. PASSELL, supra note 19, at 9-14.
42. Id. at 10-14.
43. See, e.g., To Provide for Comprehensive Immigration Reform and for Other Purposes, S. 1639, 110th Cong. tit. VI (2007).
44. See Fisk & Wishnie, supra note 12.
45. Cf. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 151 (2002) (holding that the NLRB may not award back pay to illegal aliens because it "would unduly trench upon explicit statutory prohibitions critical to federal immigration policy");
46. Julie A. Phillips et al., The New Labor Market-Immigrants and Wages After IRCA, 36 DEMOGRAPHY 233, 244 (1999) (finding that immigration status is associated with a significant wage penalty);
47. RiveraBatiz, supra note 11, at 93 (concluding that undocumented status results in a wage penalty).
48. Legal permanent residents have long been eligible to apply for naturalization after five years as permanent residents. See 8 U.S.C. § 1427(a) (2000).
49. See supra note 9 (noting "touchback" proposals).
50. Two potential exclusions of special significance are those of persons with criminal history or an outstanding removal order. See S. 1639, § 601(d)(1)(B) (excluding any person "subject to the execution of an outstanding administratively final order of removal, deportation, or exclusion");
51. id. § 601(d)(1)(E), (F) (excluding persons convicted of certain criminal offenses).
52. A 2007 Senate Bill would have established that all persons resident in the United States as of January 1, 2007, were eligible to apply for legalization. S. 1639, § 601G)). By contrast, the IRCA, enacted in November 2006, allowed only persons resident as of January 1, 1982, to seek legalization. See 8 U.S.C. § 1255a(a)(2)(A) (Supp. IV 2006).
53. See, e.g., S. Amend. 3985 (Sen. Ensign) to S. 2611, 109th Cong. (2006) Obipartisan comprehensive reform bill);
54. cf. Jonathan Blazer & Josh Bernstein, Confiscating Contributions, IMMIGR. RTS. UPDATE (Nat'l Immigr. Law Ctr., L.A., CaI.) May 10, 2007, at 3, http://www.nilc.org/immlawpolicy/CIR/ socialsecurity_confcontrib_2007-05-01_iru.pdf (arguing against the Ensign Amendment restrictions on legalized immigrants reclaiming past social security earnings).
55. See, e.g., 152 CONG. REC. S4739-41 (daily ed. May 18, 2006) (statement of Sen. Ensign).
56. See 8 C.F.R. § 274a.12 (2007) (enumerating categories of foreign nationals eligible for employment).
57. See Andrew J. Elmore, Egalitarianism and Exclusion: U.S. Guest Worker Programs and a Non-Subordination Approach to the Labor-Based Admission of Nonprofessional Foreign Nationals, 21 GEO. IMMIGR. L.J. 521, 547-48 (2007) (noting the applicability of general labor and employment laws to most temporary workers under current law, but also indicating that "the effectiveness of these protections is substantially limited by statutory exemptions of guest workers and the occupations they work in").
58. Notwithstanding the general applicability of federal and state labor and employment laws to all covered workers regardless of immigration status, judicial opinions make plain that remedies for workplace violations are limited when the worker is undocumented. For instance, a wrongfully discharged undocumented worker will not be ordered reinstated, see, e.g., NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50, 57 (2d Cir. 1997)
59. Giolding that the reinstatement of an illegally discharged immigrant worker is mandatory only upon the employee's proof of work authorization), and is ineligible for back pay in some circumstances, see Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 143-45 (2002).
60. See 8 U.S.C. § 1324a(a)(1) (2000) (prohibiting employment of unauthorized immigrants, thereby foreclosing reinstatement remedies);
61. Hoffman, 535 U.S. at 148-49 Giolding that back pay is inappropriate where the employee tenders false documents for employment and the employer is ignorant of the employee's unauthorized status).
62. See, e.g., 29 U.S.C. § 216GJ) (2000) (authorizing reinstatement and back pay for wrongful discharge in violation of the Fair Labor Standards Act),
63. invalidated by Alden v. Maine, 527 U.S. 706 (1999) (holding that Congress may not "subject unconsenting states to private suits for damages in state court" through the FLSA);
64. U.S.C. § 160(c) (2000) (same, for violation of National Labor Relations Act);
65. CONN. GEN. STAT. § 31-69b(b) (2003) (same, for violation of state wage-and-hour laws).
66. DHS reserves the right to refer, for removal proceedings, a person who makes an affirmative but unsuccessful application for an immigration benefit, such as asylum or naturalization. See IRA J. KURZBAN, KURZBAN'S IMMIGRATION LAW SOURCEBOOK 412 (10th ed. 2006), A failed legalization applicant would be at similar risk.
67. See, e.g., S. 1639, 110th Cong. § 603(a) (2007) (providing for the removal of applicants who apply for but are denied legalization).
68. In the 2007 Senate bill, for instance, persons with an old removal, deportation or exclusion order would have been eligible to legalize only if they could obtain a waiver based on proof that "departure from the United States would result in extreme hardship to the alien or the alien's spouse, parent or child." S. 1639, § 601(d)(1)(I). U.S. Immigration and Customs Enforcement (ICE) estimates that as of September 2007, there were 632,000 persons in the United States with an outstanding order of removal - a nontrivial number of people.
69. See News Release, U.S. Immigration and Customs Enforcement, ICE Arrests 15 Illegal Alien Fugitives in Lexington, Neb. (Sept. 13, 2007), http://www.ice.gov/pi/news/newsreleases/articles/070913omaha.htm.
70. Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (codified in scattered sections of 8 U.S.C).
71. Precise figures are difficult to calculate because, as Deborah Waller Meyers has noted, Labor Department certification data reflect the number of workers certified (employers do not necessary [sic] hire for all the approved slots), State Department data detail visas issued (not all of which are used or which may be used in the following fiscal year), and Department of Homeland Security (DHS) data reflect admissions, not people (an individual may enter the United States multiple times within one year and thus account for multiple admissions). DEBORAH WALLER MEYERS, INDEP. TASK FORCE ON IMMIGR. AND AMERICA'S FUTURE, TEMPORARY WORKER PROGRAMS: A PATCHWORK POLICY RESPONSE 3 (2006), available at http://www.migrationpolicy.org/ITFIAF/TFI_12_Meyers.pdf.
72. Temporary employment visas include the E, H, L, O, P, Q, R, and TN visas. See 8 U.S.C. § 1101(a)(15) (2000 & Supp. V 2007);
73. see also Foreignborn.com, Visas for Temporary Workers, http://www.foreignborn.com/visas_imm/other_visas/13temp_workers.htm (last visited Apr. 15, 2008).
74. See, e.g., June Kronholz, Guest-Worker Proposals Prove Divisive, WALL ST. J., Nov. 9, 2005, at A4;
75. Robert Pear, Proposals from Both Sides Fail in Immigration Debate, N.Y. TIMES, June 28, 2007, at A18;
76. supra note 17.
77. See, e.g., Elmore, supra note 33, at 562 ("[R]emoving the restrictions preventing visa holders from leaving their employment would advance liberty, sovereignty, and equality interests.");
78. id. at 566 (emphasizing the importance of the opportunity for temporary workers to adjust status to permanent resident status).
79. This is true for nearly all current temporary worker programs. See, e.g., 8 C.F.R. § 214.2(h) (2007) (providing the regulations governing the H-1B, H-2A, and H-2B visa programs and limiting the visa to employment for sponsoring employer);
80. Arthur N. Read, Learning from the Past: Designing Effective Worker Protections for Comprehensive Immigration Reform, 16 TEMP. POL. & CIV. RTS. L. REV. 423, 443 (2007) (acknowledging that lack of portability is "one of the most severe problems of the existing H-2A and H-2B programs"). The exception is the J-1 visa program, available for, inter alia, au pairs and international student summer work.
81. See 22 C.F.R. § 62.41 (2007). Notably, even the 2007 bipartisan legalization program would have expressly authorized "portability" for legalized workers.
82. See S. 1639, 110th Cong. § 601(m)(3) (2007).
83. See U.S. CONST, amend. XIII.
84. The conviction that a right to exit employment is fundamental to personal liberty dates at least to the writings of Adam Smith. Jedediah Purdy, A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, 72 U. CHI. L. REV. 1237, 1251 (2005) (noting Smith's argument that "each person's labor is an intrinsic quantum of personal property, which she may freely alienate by agreement, provided such agreements are bounded by the right of exit").
85. Pollock v. Williams, 322 U.S. 4, 18 (1944);
86. see also James Gray Pope. Labor and the Constitution: From Abolition to Deindustrialization, 65 TEX. L. REV. 1071, 1104-09 (1987).
87. Jedediah Purdy, People as Resources: Recruitment and Reciprocity in the Freedom-Promoting Approach to Property, 56 DUKE L.J. 1047, 1070 (2007).
88. See Pollock, 322 U.S. at 18;
89. Howard F. Chang, Liberal Ideals and Political Feasibility: Guest-Worker Programs as Second-Best Policies, 27 N.C J. INT'L L. & COM. REG. 465, 470-71 (2002) ("Freedom to leave an employer and to take employment elsewhere would give workers greater power to assert their rights . . . and thus prevent abuses . . . .").
90. See Read, supra note 43, at 431 ("[Permitting a worker to retain her legally-authorized status, only so long as she remains employed by a particular employer, is inherently a form of compulsory servitude that should be unacceptable in this society.").
91. See S. 1639, 110th Cong. tit. IV (2007).
92. See id.
93. See, e.g., 8 U.S.C. § 1101(a)(15)(H)(i)(b) (2000 & Supp. V 2007) (H-1B visa for specialty occupation);
94. id. § 1101(a)(15)(H)(ii)(a) (H-2A visas for temporary or seasonal agricultural worker);
95. id. § 1101(a)(15)(H)(ii)(b) (H-2B visa for temporary or seasonal nonagricultural worker);
96. C.F.R. § 214.2(h) (2007) (implementing regulations for all H visas).
97. See Cristina M. Rodriguez, Guest Workers and Integration: Toward a Theory of What Immigrants and Americans Owe One Another, 2007 U. CHI. LEGAL F. 219, 274 (noting that widespread violation of contract terms and extraordinarily poor working conditions characterized the Bracero program);
98. ERNESTO GALARZA, MERCHANTS OF LABOR: THE MEXICAN BRACERO STORY 183-98 (1964) (noting that the Bracero program was typified by underemployment, extremely low earnings, illegal deductions from wages, poor food, substandard housing, and rampant exposure to workplace hazards).
99. See, e.g., Read, supra note 43, at 432-41 (providing an overview of the H-2B Temporary Non-Agricultural Worker Program and criticisms thereof).
100. Id. at 428 (noting that even were comprehensive immigration reform enacted, it "is critical to realize that undocumented workers will continue to be employed in some workplaces").
101. The conditions of a future legalization measure are unknown but are likely to include certain conditions. See, e.g., S. 1639, 110th Cong. § 601(b), (d) (2007) (conditioning eligibility for legalization on the satisfaction of a durational residency requirement and denying eligibility to persons with certain criminal history).
102. Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 372-74 (2007) (noting extraordinary asylum denial rates by some asylum officers and immigration judges).
103. Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of 8 U.S.C.) (amending the Immigration and Nationality Act).
104. See, e.g., Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 140 (2002) (denying back pay previously given to an undocumented unauthorized immigrant worker because such relief was denied by the IRCA);
105. see also Michael J. Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U. CHI. LEGAL F. 193, 205-08, 217 (arguing that employer sanctions have failed to deter illegal immigration or to protect U.S. workers, but have increased employment discrimination and eroded U.S. wages, and should be abandoned).
106. See Press Release, AFL-CIO, Immigration (Feb. 16, 2000), available at http://www.aflcio.org/aboutus/thisistheaflcio/ecouncil/ ec0216200b.cfm (stating that immigrant workers should be afforded full employment rights).
107. See, e.g., S. 1639, 110th Cong. § 301 (2007) (describing the purposes of the Act as including continued prohibition of employing unauthorized immigrants, obtaining identifying records of such employees, and increasing penalties for violations).
108. María Pabón López, The Place of the Undocumented Worker in the United States Legal System After Hoffman Plastics Compounds: An Assessment and Comparison with Argentina's Legal System, 15 IND. INT'L & COMP. L. REV., 301, 332 (2004) (noting California's legislative attempt to "overcome the federal immigration policy's untoward reach, based on the Supreme Court's interpretation of the IRCA's policy in Hoffman").
109. See id.
110. See, e.g., Agri Processor Co., Inc. v. NLRB, 514 F.3d 1, 5-6 (D.C Cir. 2008) Giolding that undocumented workers are NLRA "employees").
111. 535 U.S. 137 (2002).
112. See id. at 140.
113. But see Michael J. Wishnie, Emerging Issues for Undocumented Workers, 6 U. PA. J. LAB. & EMP. L. 497, 509-11 (2004) (noting that back pay remains available under state labor and employment law where employers violate employer sanctions requirements and that other remedies such as punitive, compensatory, and statutory damages and attorney's fees are available).