>   SEARCH    
 > BROWSE Articles by :   - subject
 > GALS Home  - author
 > GALS Books  - journal
 > Working Papers   
   > SHOW ALL Articles sorted by

  Undocumented Workers
 
Borak, Jill, "A Wink and a Nod: The Hoffman Case and Its Effects on Freedom of Association for Undocumented Workers", Human Rights Brief v. 10 no3 (Spring 2003) p. 20-22

Abstract:
In this article, the author discusses the United States Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB (“Hoffman”) that undocumented immigrants improperly discharged by U.S. employers for union organizing activities are not entitled to backpay. She notes widespread concern among workers and labor rights advocates that Hoffman represents a substantial reduction in labor rights. The author begins with a discussion of the international human rights instruments governing workers’ rights, as well as the primary law governing U.S. workers’ rights -- the NLRA. The author then examines the Hoffman decision and explores the effects the decision will have on workers’ rights. Finally, the author examines actions taken in the international fora in response to Hoffman, including a request for an advisory opinion from the Inter-American Court of Human Rights and a complaint to the ILO Committee on Freedom of Association. The author concludes by arguing it is unlikely that federal legislators will propose legislation to assist undocumented workers anytime soon, thus leaving it to advocates at state and local levels to promote workers’ rights and international fora to continue to exert pressure on the U.S. government to balance its immigration policy with the rights of workers.

Subjects: Contingent Work, Undocumented Workers
Newsletter: Vol 3, Issue 8
Full-text links: || WWW || 
 
Chi, Xinying, "Challenging Managed Temporary Labor Migration As A Model For Rights And Development For Labor-Sending Countries", New York University Journal of International Law and Politics v. 40 (Winter 2008) p. 497-540

Abstract:
This article begins with the fact that half of the world's immigrant population is made up of temporary migrant workers. The author analyzes the approach of NGO's and sending countries to managing this temporary migration. Using the Philippines as an example, the article argues shows that the existing institutional infrastructure of sending countries operates and argues that it is insufficient to achieve the goals of promoting economic development and protecting the rights are migrants. The author also argues that the current migration paradigm does not lead to economic development but rather that economic reliance on migration functions to undermine the rights of migrants. The author concludes that in order to achieve the two goals of sending country economic development and protection of migrant workers' rights it is necessary to re-conceptualize the paradigm of migrant labor - and that to doing to do so successfully requires acknowledging that the current treatment of migrants is the result of value-laden political choices.

Subjects: Case Studies: Country-Specific, Immigration, Undocumented Workers
Newsletter: Vol 7, Issue 6
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Cleveland, Sarah & Smith, Rebecca & Lyon, Beth, "Inter-American Court of Human Rights Amicus Curiae Brief: The United States Violates International Law When Labor Law Remedies Are Restricted Based on Workers' Migrant Status", Seattle Journal for Social Justice v. 1 (Spring 2003) p. 795-882

Abstract:
This article is a reproduction of an amicus curiae brief filed by several groups in the United States in response to the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB (“Hoffman”), where the court held that the Immigration Reform & Control Act of 1986 (IRCA) precluded the NLRB from ordering an employer to pay an employee a back pay award for violating the NLRA. The occasion for the brief was Mexico’s request for an advisory opinion with the Inter-American Court of Human Rights in Coast Rica regarding the rights of migrant workers. The Introduction describes the plight of immigrant workers in the U.S., nothing that they are among the most poorly paid and treated in the work force. Part I argues that U.S. laws deny basic employment protections to foreign workers on the basis of alienage or immigration status, and discusses the type of work undocumented workers perform. It further addresses the lack of an effective deterrent to employer threats, the Hoffman decision and its negative impacts on workers’ rights, and other U.S. laws that exempt certain immigrants from workplace protections. Part II discusses U.S. employment laws concerning migrant workers that violate fundamental norms of non-discrimination and freedom of association. The Conclusion underscores the need for the Inter-American Court to lend clarity to the provisions of the Inter-American system and to establish fundamental protections for all workers in the region.

Subjects: Case Studies: Country-Specific, Undocumented Workers
Newsletter: Vol 3, Issue 9
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Engle, Karen, "Special Feature: Working Borders: Linking Debates About Insourcing and Outsourcing of Capital and Labor", Texas International Law Journal no40 (Summer 2005) p. 691-798

Abstract:
This article summarizes a conference on "Working Borders: Linking Debates About Insourcing and Outsourcing of Capital and Labor" held at the Univ. of Texas Law School in February, 2005. The conference focused on two phenomonon: "Insourcing," i.e., US employers' "importing" immigrant labor, particularly Mexicans, to perform low-wage service work; and "Outsourcing," i.e. the movement of high-tech service work abroad. The speakers conceptualized insourcing and outsourcing as complementary and inevitable dynamics of economic globalization. They also linked US debates on immigration reform to jobs lost to outsourcing. They discussed regulatory responses to global flows of goods, capital and labor, and they examined the prevailing citizenship model that links rights to nation of birth. In the concluding roundtable, participants discussed the prospects for promoting and regulating of labor rights in a way that would make insourcing and outsourcing less exploitative of both immigrant and outsourced workers.

Subjects: Labor Mobility, Labor Rights in General (Misc.), Outsourcing, Undocumented Workers
Newsletter: Vol 5, Issue 4
Full-text links: || WESTLAW || 
 
Gjerdingen, Erick, "Suffocation Inside a Cold Storage Truck and Other Problems with Trafficking as “Exploitation” and Smuggling as “Choice” Along the Thai-Burmese Border", Arizona Journal of International and Comparative Law v. 26 no3 (Fall 2009) p. 699-737

Abstract:
In April of 2008, Thai police encountered a refrigerated truck that had been carrying 121 Burmese migrant workers bound for Thailand’s Phuket province. Fifty-four passengers had died, while many of the rest were jailed for immigration violations. Departing from the national debate that ensued in Thailand after this tragedy, this article offers a critique of recently-developed international law on human trafficking and smuggling. UN protocols dealing with trafficking and smuggling have placed a priority on protecting trafficking victims, but not those who are smuggled. In Thailand, the author argues, this view is particularly troublesome because Burmese immigrants are fleeing political and economic crises en masse. Hence the smuggling/trafficking dichotomy is inapplicable because even seemingly voluntary migration into Thailand is being compelled by oppressive elements in the Burmese homeland. Furthermore, he argues, even where immigrants are not tied to a particular Thai employer en route, the extremely brutal nature of Burmese immigrant jobs shows that the population is largely being exploited, and thus should be considered to have been trafficked rather than smuggled. To remedy this failure of the law, the author suggests that the UN strengthen its Smuggling Protocol to better protect victims; meanwhile, it says, the Thai government should better tailor its smuggling/trafficking protections to the situation of the migrant Burmese.

Subjects: Case Studies: Country-Specific, Forced Labor, Immigration, Undocumented Workers, United Nations (UN)
Newsletter: Vol 10, Issue 5
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Gordon, Jennifer, "Transnational Labor Citizenship", Southern California Law Review v. 80 (March 2007) p. 503-599

Abstract:
This article develops the idea of "transnational labor citizenship" (TNC), a new approach to structuring cross-border labor migration. In an increasingly global market for labor, the author contends that closed borders are untenable. Instead, she proposes that permission to enter the US in search of work be linked to membership in new cross-border worker organizations, rather than to the current requirement of a job offer from an employer. Unlike guest worker programs, which ultimately degrade labor institutions and conditions, the TNC approach would facilitate the enforcement of baseline labor rights and allow migrants to carry benefits, services and rights with them as they move. The author contends that linking migration to membership in a transnational worker organization would facilitate the free movement of people while preventing the erosion of working conditions in the countries that receive them. For TNC to work, unions must accommodate an ongoing influx of new migrants and the US government must treat workers' associations as allies in immigration enforcement.

Subjects: Immigration, Labor Mobility, Labor Rights in General (Misc.), Undocumented Workers
Newsletter: Vol 6, Issue 9
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Halegua, Aaron, "Getting Paid: Processing the Labor Disputes of China's Migrant Workers", Berkeley Journal of International Law v. 26 (2008) p. 254-336

Abstract:
There are more than 150 million inter-China migrant laborers. This population makes up a subclass of socially disenfranchised workers who cannot successfully manipulate the formal legal systems to redress complaints against their employers. The inaccessibility of redress is especially urgent because many unscrupulous employers routinely fail to pay their migrant workers: some reports estimate that as high as 70% of the inter-China migrant workforce has experienced this problem. This article explains the structure of the formal legal processes available to these workers, and explores why that system is not an effective means of resolving these wage claims. Informal mediation, the article argues, is a much more viable solution. The article goes on to explore and identify the key ingredients to the most effective informal mediation process for resolution of pay claims. These key ingredients are an informal structure easily accessible by the workers, run by informal mediators who have the backing of the state.

Subjects: Case Studies: Country-Specific, China, Employment Law, Labor Mobility, Undocumented Workers
Newsletter: Vol 8, Issue 1
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Hill, Jennifer, "Binational Guestworker Unions: Moving Guest Workers into the House of Labor", Fordham Urban Law Journal v. 35 (2008) p. 307-348

Abstract:
This article explores the role of guestworkers within the ranks of organized labor in the U.S. and Canada. Part One describes the nature and extent of guestworker programs, conditions faced by guestworkers, and recent organizing efforts within that workforce. Part Two discusses the difficulties organizing guestworkers, arguing that to be successful, it would be necessary to organize both within the US or Canada and within Mexico because such a large portion of guestworkers are Mexican nationals and because much of the employment relationship plays out in the country of origin.The author recounts the Florida-based Farm Labor Organizing Committees' recent organizing efforts in Mexico, as well as elements of the UFW and UFCW organizing strategies that would be enhanced by Mexican based organizing efforts. Part Three discusses the obstacles to gaining union recognition within Mexico, including official reluctance to recognize independent unions and Mexico's ban on foreign nationals as union officials. The author suggests that these obstacles may not be insurmountable because ambiguities in Mexican law are often interpreted in favor of workers' rights. The article concludes that unions with recognition and organizational capacity on both sides of the border (US and Mexico, or Canada and Mexico) would create a meaningful path to bring guestworkers into the house of organized labor.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility, Undocumented Workers
Newsletter: Vol 7, Issue 4
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Judge, John, "International Employment Discrimination and Racketeering in the Global Economy", Texas Bar Journal v. 72 no3 (2009) p. 192-199

Abstract:
This article examines the legal implications of a particular business model favored by international carriers: affiliating with a foreign corporation (usually Mexican), who then hires truckers to do work for the carrier within the United States. In most cases, the net pay to the imported drivers is just above half of what the carrier would be paying U.S. drivers, making it a quite lucrative tool for carriers. However, the author notes several problems with such a model. First, it may involve violations of federal and Texas employment discrimination laws by paying lower wages based on national origin. Second, it may violate U.S. immigration laws by breaking the provisions of B-1 Visitor for Business visas. Third, the activity may constitute racketeering, providing for criminal penalties and civil damage awards. Finally, carriers who engage in such a model may be violating the tax law for failure to pay state and federal payroll taxes. Thus while it is tempting for a carrier corporation, such a business model should be rejected in order to avoid a plethora of potential liabilities.

Subjects: Case Studies: Industry-Specific, Immigration, Labor Mobility, NAFTA/GATT, Outsourcing, Undocumented Workers, Workplace Discrimination
Newsletter: Vol 9, Issue 8
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Kuwahara, Yasuo, "Migrant Workers in the Post-War History of Japan", Japan Labor Review v. 2 no4 (Fall 2005) p. 25-47

Abstract:
This article explores the rekindled interest in the issue of foreign workers in Japan today. The first section describes the prevalence of foreign workers throughout all of Japan's labor force, and showing how while foreign workers are ubiquitious, they are not wholly accepted by Japanese society or Japan's government. The second section explains the historical roots of the category, 'foreign workers of Japanese descent. These are Japanese people who emigrated out of Japan as early as 1908 to look for work, who's descendants are now coming back to Japan to earn a living -- a pattern that has been termed "U-turning." The third section discusses the causes and factors of Japan's increasing dependence on foreign workers, including labor shortages in Japan and Japanese workers shunning of types of jobs that are considered "dirty" or "dangerous (i.e. non white-collar jobs). The next section explores several issues that have arisen with the influx of foreign workers, including the problem of foreigners overstaying their visas to illegally work in Japan, the abuse of training programs by employers, and the tension between workers of Japanese descent, who are allowed to work in Japan legally, and illegal foreign workers who are not. The article concludes that Japan's government needs to set up a single administrative body that can discuss and implement practical solutions to accommodate the steady and continual increase of foreign workers and encourage true acceptance of foreign workers in Japan.

Subjects: Case Studies: Country-Specific, Contingent Work, Immigration, Japan, Labor Mobility, Undocumented Workers
Newsletter: Vol 5, Issue 2
Full-text links: || WWW || 
 
López-Pabón, María, "The Intersection of Immigration Law and Civil Rights Law: Noncitizen Workers and the International Human Rights Paradigm", Brandeis Law Journal v. 44 (Spring 2006) p. 611-635

Abstract:
This article focuses on the intersection of immigration law, alienage law and civil rights. The author contends that these laws and rights converge in the workplace and she traces their impact on noncitizens of color in the US. Lopez shows how antidiscrimination laws have been interpreted to deny protection to noncitizens, and argues instead for an international human rights approach. López guides the reader through international human rights regimes that protect the noncitizen worker, including discussions of the Universal Declaration of Human Rights of 1948 , the International Covenant on Civil and Political Rights, the International Convention on the Protection of the Right of All Migrant Workers and Members of Their Families, and the Convention on the Elimination of All Forms of Discrimination Against Women. López concludes by stating that antidiscrimination law should apply to noncitizens in the United States regardless of their immigration status and that worker protection should be based on personhood and dignity rather than immigration status.

Subjects: Immigration, Labor Rights as Human Rights, Undocumented Workers, United Nations (UN), Women’s Rights, Workplace Discrimination
Newsletter: Vol 6, Issue 1
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
López-Pabón, María, "Immigration Law Spanish-Style: A Study of Spain's Normalizacion of Undocumented Workers", Georgetown Immigration Law Journal v. 21 (Summer 2007) p. 571-593

Abstract:
Lopez discusses Spain's recent efforts to regularize the status of undocumented workers by granting amnesty to those who met certain employment and residence requirements. Spain, like the U.S., has become a destination for immigrants despite border policing--particularly from Eastern Europe, South America, and Africa--due to unprecedented job growth. After providing a background on Spain's immigration laws and trends, including previous attempts to regularize the undocumented, Lopez discusses the poor working and living conditions and racial antagonism suffered by a Moroccan community in one Spanish city to demonstrate the perilous circumstances faced by the undocumented. The author then discusses the main features of the 2005 amnesty, which required employers to petition on behalf of workers; over 700,000 were given work and residence permits for up to three years. Lopez then addresses the criticisms of EU member countries that Spain was "fueling"more immigration by opening the proverbial "door" and undermining the EU's larger immigration scheme. Lopez dismisses the critiques as "more political than legal"through her analysis of applicable EU laws and treaties concluding that EU members states retain the ability to determine their own immigration matters. Regardless of the legality of Spain's program, Lopez takes Spain to task for instituting an inflexible short-term solution that 1) did not make legal immigration more accessible, 2) failed to capture all undocumented workers, 3) emphasized workers' outsider status and 4) tied workers' status to employers thereby rendering workers vulnerable to exploitation.

Subjects: Contingent Work, European Union, Immigration, Labor Mobility, Undocumented Workers
Newsletter: Vol 8, Issue 2
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Nagle, Luz Estella, "Selling Souls: The Effect of Globalization on Human Trafficking and Forced Servitude", Wisconsin International Law Journal v. 26 (Spring 2008) p. 131-162

Abstract:
“Selling Souls” is primarily concerned with the inextricability of human trafficking from globalization. Nagle argues the rise in trafficking is an unintended consequence of globalization—the “supply and demand of transportable commodities,” including human beings, across national borders. Traffickers prey on people’s poverty and hope for a better life at the behest of an international economic order driven by profit margins predicated on low labor costs. Trafficked individuals, forced to work for little or nothing in manufacturing, agriculture, and the sex trade, are the ultimate cheap labor and can be found throughout the world. Nagle contends trafficking is endemic because “everyone benefits”: “mom and pop” traffickers and large criminal syndicates paid to recruit unwitting migrants, source countries relieved of the destitute, government agents bribed to look the other way, multi-national corporations profiting off cheap labor, and first world consumers availing themselves of cheap goods and services at home and abroad. Nagle urges political leaders to take account of the “nexus” between globalization and trafficking when fashioning responses to combat the crime. She underscores that any serious response must involve efforts by state, corporate, and civil society actors in both source and recipient countries, and invoke international human rights norms.

Subjects: Forced Labor, Immigration, Sex Workers, Undocumented Workers
Newsletter: Vol 8, Issue 6
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Note, "Counteracting the Bias: The Department of Labor’s Unique Opportunity to Combat Human Trafficking", Harvard Law Review v. 126 (February 2013) p. 1012-1033

Abstract:
The author argues that efforts to combat human trafficking in the United States have been largely ineffective because officials view trafficking through an anti-prostitution frame. This is inappropriate because sex trafficking represents a small minority of human trafficking cases. The majority of trafficking in the United States is labor trafficking. The author begins by describing the negative effects of labor trafficking, which extend beyond harm to the trafficked individual. When labor trafficking is prevalent, entire employment sectors in the United States and abroad begin to see increased incidence of depressed wages, dangerous workplaces, and poor working conditions. Combating labor trafficking is especially difficult because, unlike victims of sex trafficking, victims of labor trafficking are often more difficult to identify as they often work ‘in plain sight’ at otherwise-legal service or manufacturing jobs. Further, efforts to combat labor trafficking are made more complicated by the departments that oversee immigration and sex trafficking enforcement: the Department of Homeland Security (DHS) and the Department of Justice (DOJ). Both departments often detain, investigate, and sometimes prosecute trafficking victims who have committed immigration and criminal offenses. These consequences have a chilling effect on victims who might otherwise report trafficking offenses. The author argues that the Department of Labor (DOL) has a unique opportunity to combat labor trafficking through the Wage and Hour Division, whose investigators have experience uncovering the exploitation of workers. Thus, unlike the DHS and the DOJ, who are obliged to prosecute victims who may also be in violation of immigration and criminal statutes, the DOL only has the authority to address worker exploitation. As a result, trafficked workers may be more likely to contact the DOL to report workplace abuses than they would be to contact other law enforcement authorities.

Subjects: Forced Labor, Labor Rights as Human Rights, Undocumented Workers
Newsletter: Vol 12, Issue 6
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Ogawa, Makoto, "Current Issues Concerning Foreign Workers in Japan", Japan Labor Review v. 2 no4 (Fall 2005) p. 6-24

Abstract:
This article gives an overview of the issues concerning foreign workers in Japan, including detailed survey data of the actual workers, policies in dealing with their influx, and general public opinion toward them. The first section describes why current conditions in Japan's labor market -- specifically falling fertility rates, an increasing proportion of elderly people, and a high unemployment rate -- have put the issue of foreign workers in the spotlight. The second section discusses how the basic policy in Japan is to promote acceptance of foreign workers, favoring skilled (i.e., professional or technical) as opposed to unskilled workers. The third section explores the circumstances that affect foreign workers in Japan, including programs to facilitate foreign workers entrance into Japan's labor market, public opinion on foreign workers ( i.e., negative), specific fields in which foreign workers find employment (i.e, entertainment and manufacturing), and residency requirements. The fourth section examines policies that affect foreign workers, the 'double-payment' problem in which foreign workers must make pension contributions in both Japan and one's own country, and issues concerning the education foreign workers' children. The next section reviews proposals to deal with foreign workers in Japan, including advocating town hall meetings be held to collect suggestions, and the adoption of a comprehensive policy that embraces and takes full advantage of the potential of foreign workers. The final section states that Japan is negotiating with countries in Asia to establish economic partnership agreements to establish conditions for bringing in foreign workers from their respective countries. The article concludes that this issue of accepting foreign labor must be looked at in a comprehensive manner, but also cautions prudence, as issues such as this one require public consensus.

Subjects: Case Studies: Country-Specific, Contingent Work, Immigration, Japan, Labor Mobility, Undocumented Workers
Newsletter: Vol 5, Issue 2
Full-text links: || WWW || 
 
Paoletti, Sarah, "Transnational Responses to Transnational Exploitation: A proposal for Bi-National Migrants Rights Clinics", University of Pennsylvania Journal of International Law v. 30 no4 (Summer 2009) p. 1171-1185

Abstract:
This article summarizes recent developments in international law that affect migrants' rights. These developments include the International Convention on the Rights of Migrant Workers and Members of the Families, and an Inter-American Court on Human Rights Advisory Opinion on the rights of undocumented migrants. The author notes that U.S. law schools' clinical programs tend to be rooted in either domestic or international law, but rarely employ the full range of legal tools available to practitioners. The author proposes that U.S. law schools create bi-national migrants rights clinics in partnership with foreign law schools, to both enhance legal education and improve outcomes in clinical efforts to represent migrant workers.

Subjects: Immigration, Labor Mobility, Undocumented Workers
Newsletter: Vol 8, Issue 12
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Richelson, Sarah, "Trafficking and Trade: How Regional Trade Agreements Can Combat the Trafficking of Persons in Brazil", Arizona Journal of International and Comparative Law v. 25 (Fall 2008) p. 857-898

Abstract:
Richelson provides an overview of human trafficking, a “rapidly expanding” crime that generates over nine billion dollars in global annual revenue. Brazil is the largest exporter of women and children, often trafficked into sex work worldwide, and also a destination country for trafficked workers. Richelson discusses Brazil’s efforts to combat trafficking in the “triple frontier” region between Brazil, Argentina, and Paraguay, and argues none of Brazil’s responses alone is sufficient. For instance, though Brazil has stepped up the enforcement of anti-trafficking laws and created agencies dedicated to trafficking, Richelson argues police and government corruption inhibits the efficacy of these efforts. The human rights framework, which includes government-sponsored shelters and toll-free help-lines, focuses too exclusively on sex trafficking and ignores labor rights. The author suggests that regional free trade agreements (FTAs) would be a better approach to combating trafficking. FTAs could incorporate a human and labor rights framework and also provide a mechanism to hold governments accountable. They would also change the underlying economic conditions that foster trafficking.

Subjects: Child Labor, Forced Labor, Free Trade Agreements, Sex Workers, Undocumented Workers, Women’s Rights
Newsletter: Vol 8, Issue 7
Full-text links: || WESTLAW || LEXIS-NEXIS || WWW || 
 
Robin, Gabriela, "Hoffman Plastic Compounds Inc. v. National Labor Relations Board: A Step Backwards For All Workers In The United States", New England Journal of International and Comparative Law v. 9 (2003) p. 679-693

Abstract:
This article examines the 5 Hoffman Plastic Compounds, Inc. v. NLRB (Hoffman) case in which the Supreme Court held 5-4 that the Immigration Reform & Control Act of 1986 (IRCA) precluded the NLRB from ordering an employer to pay an employee a back pay award for violating the NLRA. Part II examines the facts of the case as well as the majority and dissenting opinions. Part III discusses the purpose of the NLRA and the IRCA, and Part IV argues that the two acts were not intended to conflict with each other. Part V argues that the Hoffman decision gives employers an incentive to hire undocumented workers while depriving undocumented workers of any remedies for violations of their labor law rights. Finally, Part VI concludes that the Court should have upheld the NLRB ruling that undocumented workers are entitled to back pay, and provides and alternative explanation for the Court's decision.

Subjects: Case Studies: Country-Specific, Undocumented Workers
Newsletter: Vol 3, Issue 6
Full-text links: || WESTLAW || WWW || 
 
Ruiz Cameron, Christopher David, "Law and the Border: Borderline Decisions: Hoffman Plastic Compounds, the New Bracero Program, and the Supreme Court’s Role in Making Federal Labor Policy", UCLA Law Review v. 51 no1 (October 2003) p. 1-34

Abstract:
In this article, the author discusses Hoffman Plastic Compounds, Inv. V. NLRB, in which the United States Supreme Court held that an undocumented alien who is illegally fired for exercising her right to join a labor union is not entitled to collect backpay for her employer’s misconduct. The author analyzes the effect that Hoffman will have on undocumented workers in the U.S. Part I explores the rationale underlying the Hoffman decision, noting that the Supreme Court did not display its usual deference to the NLRB’s expertise in interpreting and applying the NLRA. Part II explores three earlier decisions that the Court relied upon, and argues that those decisions did not compel the result reached by the Hoffman majority. Part III criticizes the Supreme Court for usurping Congress’s role in setting federal labor policy.

Subjects: Case Studies: Country-Specific, Labor Rights in General (Misc.), Undocumented Workers
Newsletter: Vol 3, Issue 5
Full-text links: || WESTLAW || 
 
Ruiz Cameron, Christopher David, "The Borders of Collective Representation: Comparing the Rights of Undocumented Workers to Organize under United States and International Labor Standards", University of San Francisco Law Review v. 44 no2 (Fall 2009) p. 431-453

Abstract:
The author compares the U.S. approach to collective bargaining rights of transborder workers as articulated in the U.S. Supreme Court opinion in Hoffman Plastics Compounds, Inc. v. National Labor Relations Board (“Hoffman Plastics”) with the standards set forth in several international labor rights instruments. He uses standards set forth in international human rights instruments, ILO Conventions, regional human rights instruments, labor rights clauses in free trade agreements, and European Union directives to argue that there is an international consensus that freedom of association is a fundamental right for all workers, regardless of citizenship status. In Part I, the author considers whether undocumented workers in the United States are considered “employees” under the National Labor Relations Act, notes the Supreme Court’s conflicting views on the issue, and opines that Hoffman Plastics is “not the only way” to consider the rights of undocumented workers in the U.S. In Part II, he compares the U.S. Supreme Court’s treatment of undocumented workers with the more inclusive definition of “employee” under international labor standards found in the various international instruments. In conclusion, the author argues that U.S. courts should limit Hoffman Plastics to its narrow facts and reinterpret the NLRA to conform to international labor principles by including undocumented workers as “employees” who are entitled to the full rights and remedies guaranteed by law.

Subjects: Comparative Labor Law, Immigration, Undocumented Workers
Newsletter: Vol 10, Issue 4
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Russo, Robert, "A Cooperative Conundrum? The NAALC and Mexican Migrant Workers in the United States", Law & Business Review of the Americas v. 17 no1 (Winter 2011) p. 27-38

Abstract:
While much analysis of the North American Agreement on Labor Cooperation (NAALC) tends to focus on its failure to effect changes to working conditions in Mexico, says the author, here the analysis is on the disappointing results of the agreement for migrant workers in the US. The article begins with a critique of the NAALC framework: the author says it is a partnership that exacerbates inequalities inherent in the different bargaining countries and otherwise takes a soft-law approach to workers’ rights. Next, the author goes on to examine how the US fails to implement the NAALC’s theoretical labor protections for Mexican migrant workers: first, by limiting the its definition of “migrant worker” to workers with legal documents; then, by failing to prosecute violations due to political considerations and slow-moving bureaucracy. The author finds this soft-law framework unacceptable, given the hard-law approach needed to protect migrant workers’ rights in the US.

Subjects: Framework Agreements, Freedom of Association, Immigration, NAFTA/GATT, Trade Agreements, Undocumented Workers
Newsletter: Vol 11, Issue 8
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Thomas, Chantal, "Convergences and Divergences in International Legal Norms on Migrant Labor", Comparative Labor Law & Policy Journal v. 32 no2 (Winter 2011) p. 405-441

Abstract:
This article examines international legal regimes governing migrant labor. Through an investigation of the international regulatory terrain affecting migrant labor, the author posits that, even where disparate treaties converge doctrinally, they may diverge normatively. Section I examines convergence and divergence around specific norms and principles through a discussion of rules affecting migrant workers from different realms of international law - human rights, trade, labor, and criminal law. The author applies this discussion to four hypothetical instances of inter-treaty conflict on migrant workers' rights. Section II elucidates the concern that specialized law-making and institution-building results in conflicts between rule-systems, deviating institutional practices, and a possible loss of overall perspective on the law. For example, with regard to international treaties dealing with crime, the author explains that while there is no necessary doctrinal conflict between such treaties and their counterparts in human rights insofar as migrant workers are concerned, such treaties may represent a normative divergence because they may reinforce an association of migration with dangerous and threatening criminal activity. In conclusion, the author highlights various commentators' responses to the plural legalities of international migration, and cautions that the fragmentation of international law - manifested in the emergence of different rule systems within human rights, labor, trade, and crime regimes - may have dangerous results for migrant workers.

Subjects: Comparative Labor Law, Immigration, Undocumented Workers
Newsletter: Vol 10, Issue 6
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Weissbrodt, David, "Remedies for Undocumented Noncitizens in the Workplace: Using International Law to Narrow the Holding of Hoffman Plastic Compounds, Inc. v. NLRB", Minnesota Law Review v. 92 (May 2008) p. 1424-1465

Abstract:
In Hoffman v. NLRB, the Supreme Court held that an undocumented worker was ineligible for backpay due to his citizenship status, despite the fact that his dismissal for union activity was a violation under the National Labor Relations Act. Weissbrodt contends Hoffman is contrary to universal norms such as the principle of nondiscrimination against noncitizens, declared jus cogens (a "norm accepted and recognized by the international community...from which no derogation is permitted") by the Inter-American Court of Human Rights. He also notes that Hoffman conflicts with the terms of international treaties to which the U.S. is a signatory. Even though U.S. courts have been reluctant to apply jus cogens or to interpret treaties as judicially enforceable, Weissbrodt maintains that courts hearing cases post-Hoffman should consider international norms and treaty obligations "interpretative tools," just as the Supreme Court did in Lawrence v. Texas. He urges U.S. courts to adhere to international legal norms and treaty obligations by limiting the applicability of Hoffman to backpay remedies under the NLRA, rather than extending the holding to other statutory claims of unauthorized workers.

Subjects: Case Studies: Country-Specific, Immigration, Undocumented Workers
Newsletter: Vol 8, Issue 4
Full-text links: || WESTLAW || LEXIS-NEXIS || 
 
Zaletel, Petra, "Competing for the Highly Skilled Migrants: Implications for the EU Common Approach on Temporary Economic Migration", European Law Journal v. 12 no5 (September 2006) p. 613-635

Abstract:
This article compares efforts of the European Union and the United States to attract highly skilled workers in the "knowledge economy." The author seeks to contribute to policy design in the EU, where there is a growing need for the highly skilled but so far only Germany and the UK have programs to attract them. The article discusses economic accounts of the importance of highly skilled labor and surveys of global migration of the highly skilled. The author argues that the EU needs a common policy to make the entire region attractive to highly skilled workers in order to increase its competitiveness in the global economy. She concludes that the best legislative strategies involve programs that facilitate a speedy transition to permanent residence, family unification and provide general flexibility.

Subjects: Case Studies: Country-Specific, Contingent Work, Immigration, Labor Mobility, Undocumented Workers
Newsletter: Vol 6, Issue 9