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  Immigration
 
Appleton, Simon & Knight, John & Song, Lina & Xia, Qingjie, "Contrasting Paradigms: Segmentation & Competitiveness in the Formation of the Chinese Labour Market", Journal of Chinese Economic and Business Studies v. 2 no3 (September 2004) p. 185-285

Abstract:
This article argues that the current labor market in urban China is a paradigm of a “three tier” labor market (as opposed to a competitive labor market) by comparing wage functions across categories (“tiers”) of labor. The first tier consists of “non-retrenched urban workers,” workers that are employed and not laid off since 1992. The second tier consists of “re-employed urban workers,” workers who were laid off, but were employed when the survey was conducted (year 2000). The third tier consists of “rural-urban migrants,” workers who migrated from rural areas. The first section gives a historical background on the labor market reforms that China had implemented in the 1990s in an effort to create a more competitive labor market. The two most dramatic changes were the end of the lifetime employment system and the increased government permission of rural-urban migration. The second section describes the data (number of households, description of workers) and methods used (wage functions, panel data) to compare the three tiers of the labor market. It also explains econometric issues that may arise, such as sample selectivity bias. The third section analyzes the test results of the wage functions. The authors state that the findings suggest workers in urban China are rewarded differently according to what category they fit in, with the first tier having the highest wage premiums and the migrants having the lowest in absolute terms. The fourth section investigates whether certain characteristics (such as education, age, occupation, etc.) could explain these wage differences by standardizing them in the wage functions. The authors find that the results imply that non-retrenched urban workers (first tier) have a distinct wage advantage over the other two tiers. Though the article concludes that Chinese urban workers are currently in a segmented labor market, it expresses hope of emerging signs of competitiveness.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Immigration
Newsletter: Vol 4, Issue 2
 
Bomba, Margaret, "Exploring Legal Frameworks to Mitigate the Negative Effects of International Health Worker Migration", Boston University Law Review v. 89 no3 (June 2009) p. 1103-1135

Abstract:
This article focuses on the problem of health workers migrating en masse from the developing world to wealthy countries. In Part I, the author describes the problem and presents reasons why health workers are migrating at such an alarming rate. In Part II, the article details the debate about global health-worker migration between (1) those who wish to keep things as they are, (2) those who recognize a problem, yet advocate against control over health worker migration, and (3) those who recognize a problem and advocate for regulation of health-worker migration. Part III examines the evolving framework of immigration laws in the U.S. as they relate to doctors, in particular. The laws initially required foreign doctors to return home after training in the U.S., but now create possibilities for those doctors to remain in the U.S. Part IV then examines a number of national and international attempts at curbing Global North-to-South health-worker migration. Finally, Part V examines the efficacy of different solutions and concludes that codes of ethics for international recruitment of health workers, as well as bilateral and multilateral international agreements, are the most promising.

Subjects: Case Studies: Industry-Specific, Corporate Codes of Conduct, Immigration
Newsletter: Vol 10, Issue 1
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Canova, Timothy A., "Closing the Border and Opening the Door: Mobility, Adjustment, and the Sequencing of Reform", Georgetown Journal of Law and Policy v. 5 (2007) p. 341-420

Abstract:
This article explores the limitations of both the current U.S. policy towards, and the current discourse surrounding, illegal immigration across the Mexican/U.S. border. The article also identifies the economic preconditions and policy choices that could change the pattern of illegal immigration. Part One describes three border paradigms: open, closed, and porous borders. The section posits that the U.S.-Mexico border is open for movement of goods and capital and porous for the movement of people. Part Two discusses the deficiencies of the open and porous border models. It argues that neither model adequately addresses national security concerns and that both undermine the ability of the nation-state to effectively respond to citizens' needs. Part Three examines historical examples of effective regional development models, including the Marshall plan and the European Union's regional assistance program. Part Four extrapolates from these examples to develop a "mobilization model" that would promote regional development in North America, address Mexico's social and physical infrastructure needs, and simultaneously stimulate the U.S. and Canadian economies. Part Five considers a range of institutional reforms that would be necessary to allow the mobilization model to work, such as public finance reform and the creation government institutions to control price and currency stabilization. By reinvigorating the nation-state and spurring economic development on both sides of the border, the article concludes, this mobilization model offers the only path to a viable border paradigm for future generations: an open border.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility
Newsletter: Vol 7, Issue 5
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Chacón, Jennifer M., "Misery and Myopia: Understanding the Failures of U.S.Efforts to Stop Human Trafficking", Fordham Law Review v. 74 (2006) p. 2977-3040

Abstract:
This article describes the Victims of Trafficking and Violence Protection Act of 2000 (TVPA), contextualizes it in the history of U.S. migration legislation and law enforcement, and critically evaluates its impact. The author argues that although the Act yields a few positive outcomes for the most exploited trafficking victims, the TVPA suffers from systemic flaws. In practice, she maintains, the TVPA and its antecedents actually facilitate trafficking and exploitation by focusing on border interdiction strategies, harshly penalizing migrant workers, and providing insufficient labor protections. Part I defines trafficking, contrasting the international law and more narrow TVPA definitions. Part II, a history of the TVPA, argues that it and the legal regime on which it is built facilitate trafficking into and within the U.S. Part III shows that under the TVPA, very few victims have been identified, few cases have been prosecuted; and trafficking has not been suppressed. The author then asks why the TVPA has failed. She contends that the causes for the failure are (1) the presumptive criminality of migrants, (2) the enforcers' sacrifice of migrant protection to the agenda of furthering criminal prosecution, (3) the conflation of trafficking and prostitution, (4) a general racial bias in the conception of trafficking, and (5) the Act's focus on border interdiction rather than internal enforcement.

Subjects: Forced Labor, Immigration, Sex Workers, Women’s Rights
Newsletter: Vol 5, Issue 10
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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
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Chuang, Janie A., "Marketization and Families: Achieving Accountability for Migrant Domestic Worker Abuse", North Carolina Law Review v. 88 no5 (June 2010) p. 1627-1656

Abstract:
This article discusses the plight of migrant domestic workers through a two-part analysis. In Part I, Chuang examines the global push-pull that has created a booming market for domestic workers. In underdeveloped countries, women are pushed to the North with the goal of making a decent wage and sending remittances back home. In receiving countries, a modern “care deficit” transfers unwanted household labor from middle and upper class women to migrant domestic workers. While domestics are “needed” by their First World recipients in an economic sense; cultural, gender, ethnic, and immigration-based oppression lead to deplorable work conditions. Further, while there are few international or national legal protections for domestic workers, Chuang argues that there may be hope through human trafficking legislation. In Part II, Chuang presents a case study of the trafficking of migrant domestic workers in the United States by foreign diplomats. While such cases are probably a small portion of domestic worker abuse, a combination of worker vulnerability and diplomatic immunity have prompted domestic worker organizing and legislative action. The article concludes with an examination and critique of current efforts by Congress and the State Department to protect trafficking victims.

Subjects: Case Studies: Country-Specific, Case Studies: Industry-Specific, Immigration, Women’s Rights
Newsletter: Vol 10, Issue 1
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Fudge, Judy & MacPhail, Fiona, "The Temporary Foreign Worker Program in Canada: Low-Skilled Workers as an Extreme Form of Flexible Labor", Comparative Labor Law & Policy Journal v. 31 no1 (Fall 2009) p. 1-45

Abstract:
This article describe Canada’s Temporary Foreign Worker Program (TFWP) and shows how it is as an employer-driven program that creates risks for foreign workers and Canadian labor standards. The program consists of a high-skill stream and a low-skill stream. Guest-workers in the high skill stream are normally granted visas for their immediate family members, and gain the chance to immigrate permanently. Guest-workers in the low-skill stream cannot readily change employers, are usually unable to bring family members during stays of up to two years in Canada, and are not normally eligible to immigrate at the conclusion of their contract. The authors note an increasing reliance on the TFWP to meet Canada’s labor needs, as the number of temporary foreign workers in the country has surpassed the number of permanent immigrants in the economic class. The authors conclude that despite some government efforts to improve working conditions, the TFWP puts guest-workers at risk for workplace rights violations.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility
Newsletter: Vol 9, Issue 7
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Ganesh, Aravind R., "Appointing Foxes to Guard Henhouses: The European Posted Workers' Directive", Columbia Journal of European Law v. 15 (2009) p. 123-142

Abstract:
This article discusses the implications of recent decisions by the European Court of Justice affecting the representational rights for the one million "posted" workers working temporarily under contract in another EU member state than the one in which they live. Cases such as Laval and Viking illuminate the tensions between the EC Directive for posted workers, which establishes minimum standards, and collective bargaining agreements, which seek to raise standards. The author argues that the governance structure established by the Directive is inadequate to give "voice" to posted workers because the member states, unions, and businesses that are empowered to engage in a "social dialogue" about working conditions for posted workers have interests in conflict with those of the workers themselves. For instance, while both member states and unions are concerned about the downward pressure on wages due to the importation of cheaper labor, traditional unions have little institutional interest in organizing transient workers while member states fear posted workers will drain their social welfare coffers, giving them little incentive to broaden domestic protections for protected workers. Likening the member states and unions to "foxes," Ganesh further maintains that the European Commission's efforts to remedy the disempowerment of posted workers by encouraging greater cooperation and transparency among the partners of the "social dialogue" will prove hollow unless it includes the right of posted workers to be heard.

Subjects: Contingent Work, European Union, Immigration, Labor Mobility
Newsletter: Vol 8, Issue 2
 
Garcia, Ruben J., "Crossing the Line? Examining Current U.S. Immigration & Border Policy: Labor as Property: Guestworkers, International Trade, and the Democracy Deficit", The Journal of Gender, Race & Justice v. 10 (2006) p. 27-82

Abstract:
This article explores recent immigration reform proposals in the United States that rely on the creation of “guestworker programs” that seek to bring unskilled workers to the United States on a temporary basis. The author evalutes these programs from the point of view of the commodification of labor, globalization, and the democracy deficit. The article argues that “in order for workers to have bargaining power in the global market for labor, they must be given a voice in the negotiations over trade agreements through representatives of their own choosing. Guestworker status is “fundamentally incompatible with the ability to exercise meaningful bargaining power over their labor conditions.” The author notes that immigration restrictions, including guestworker programs that limit the free movement of migrant workers from one employer to another, operate to increase the insecurity of foreign workers, so that, contrary to neoliberal ideology, the increased demand for immigrant labor does not translate into increased bargaining power in the workplace. In addition, the author argues, contrary to Supreme Court precedent, that threat of deportation is inconsistent with the Thirteenth Amendment’s ban on involuntary servitude.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility
Newsletter: Vol 6, Issue 10
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Gavito, Victoria, "The Pursuit of Justice is Without Borders: Binational Strategies for Defending Migrants' Rights", Human Rights Brief v. 14 no3 (2007) p. 5-7

Abstract:
The author begins by describing three obstacles that affect the ability of guestworkers to obtain workplace justice in the U.S. The first barrier is fear, particularly the fear of being fired and blacklisted and hence being left with no prospect of other employment in the U.S. The second barrier is legal; guestworkers are excluded from some worker protective legislation. Third, guestworkers are ineligible for representation by legal services attorneys in some cases. To attempt to overcome these barriers to workplace justice, the author proposes transnational legal collaborations, and offers the Centro de los Derechos del Migrante (Center for Migrants' Rights) as an example. This organization is based in Mexico, and has employed strategies such as training guestworkers on their rights before they depart for the U.S., and contributing Mexican jurisprudence to a case involving guestworkers in U.S. courts.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility
Newsletter: Vol 8, Issue 12
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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
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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
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Gyo, Christoph, "Migrant Workers in Germany", Comparative Labor Law & Policy Journal v. 31 no1 (Fall 2009) p. 47-66

Abstract:
The article reviews the legal status of migrant workers in Germany under international, European, and national law. The author discusses the requirements for entry to work and work, residency, and settlement permits. Permit requirements generally depend on the worker’s nationality. The more favorable regulations apply to nationals of the original fifteen European Union states, although bilateral agreements and international law provide preferential treatment to nationals of other countries, including Turkey. Requirements also vary by workers’ skill level and occupation. The author discusses the legal status and working conditions of asylum seekers, illegal workers, and posted workers as well. The latter are migrant employees of foreign companies operating in Germany and work largely in construction and elderly care. Employers often evade legal standards for posted workers and applicable collective agreements by designating them as “self-employed.” While illegal workers have the same formal workplace rights as non-migrants, risk of extradition and contracting chains that veil responsible principals tend to make enforcement difficult.

Subjects: Case Studies: Country-Specific, Immigration
Newsletter: Vol 11, Issue 9
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Haider, Aliya, "Out of the Shadows: Migrant Women’s Reproductive Rights Under International Human Rights Law", Georgetown Immigration Law Journal v. 22 (Spring 2008) p. 429-460

Abstract:
International human rights law protects migrant women’s rights to bodily autonomy, health care, and freedom from exploitation, but this article argues that migrant women often “fall between the cracks” when it comes to safeguarding those rights. In addition to facing racial and ethnic discrimination, migrant women are vulnerable to gender-based discrimination and sexual exploitation, especially in the form of sex trafficking. Migrant women’s tenuous citizenship status often exacerbates these vulnerabilities and compromises their access to gender-based health care services. Language barriers also isolate women from information and services necessary to enable them to exercise and vindicate both reproductive and workplace rights. The author recommends that governments extend labor law protection to all domestic workers, many of whom are migrants, and that they provide training to law enforcement and public health officials about migrant women’s vulnerabilities. Finally, the author underscores the importance of international advocacy to effectuate these reforms.

Subjects: Immigration, Sex Workers, Women’s Rights
Newsletter: Vol 8, Issue 5
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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
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Hing, Bill Ong, "Immigration Policy: Thinking Outside the (Big) Box", Connecticut Law Review v. 39 (2007) p. 1401-1447

Abstract:
This article explores how complex market forces guarantee the flow of undocumented labor into the U.S., rendering current approaches to immigration enforcement unworkable. It begins with a description of Wal-Mart's cost-cutting corporate culture that pressures managers to engage in practices that run afoul of immigration law. Then it explores the forces that make these seemingly undesirable employment opportunities an irresistible draw for undocumented workers from Mexico, forces such as U.S employers' direct and indirect recruitment efforts through the Bracero program and NAFTA's acceleration of "illegal" immigration by facilitating the flow of capital, goods, and services without facilitating an increased flow of labor. The author argues that an improved Mexican economy will not stop the flow of undocumented workers into the U.S. in the short term. The article concludes that we must move beyond conceptualizing the flow of undocumented workers as an enforcement problem to creating a system that matches the labor demands of American employers with available workers. It also insists that the such system must guarantee that immigrant workers have enforceable rights.

Subjects: Case Studies: Country-Specific, Immigration, NAFTA/GATT
Newsletter: Vol 7, Issue 2
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Jackson, Sheila Lee, "Why Immigration Reform Requires A Comprehensive Approach That Includes Both Legalization Programs and Provisions to Secure the Border", Harvard Journal on Legislation v. 43 no267 (Summer 2006) p. 267-286

Abstract:
In this article, Democratic Representative Sheila Jackson Lee of Texas argues that past efforts by the Bush Administration to "manage" the population of undocumented workers already in the United States, and to prevent a new population of undocumented migrants from replacing them, have been "ineffective," "wasteful" and "intrusive." Representative Jackson Lee further contends that the Bush Administration's recent legislative proposal to establish a guest worker program only temporarily addresses the issue of the current undocumented population. She criticizes the proposal on the grounds that it is unrealistic to expect that workers brought to the United States on a temporary basis will voluntarily leave at the end of their authorized employment period. In its place, Representative Jackson Lee describes two immigration reform bills she has introduced in the House of Representatives: the Save America Comprehensive Immigration Act (SACIA), and the Rapid Response Border Protection Act (RRBPA). The first would provide permanent legal status to undocumented immigrants who have lived in the United States for more than five years. The second statute would add 15,000 new Border Patrol agents over a five-year period, thereby increasing the number of agents from 11,000 to 26,000. To staunch the tide of illegal border crossing, RRBPA would equip immigration enforcement officials with more helicoptors, power boats, land-based vehicles, portable computers, reliable radio communications systems, hand-held GPS devices, body armor and night-vision equipment. Estimating that more than ten million undocumented persons presently reside in the United States, Jackson Lee writes that the "sheer ineffectiveness of our present militarized tactics to prevent undocumented immigration is startling."

Subjects: Case Studies: Country-Specific, Immigration
Newsletter: Vol 5, Issue 9
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Jacoby, Sanford M. & Finkin, Matthew W., "Labor Mobility in a Federal System: The United States in Comparative Perspective", International Journal of Comparative Labour Law and Industrial Relations v. 20 no3 (2004) p. 313-337

Abstract:
This article compares trends in and patterns of labor mobility within the United States and the European Union. The authors begin with the common assumption that labor mobility is relatively low within the European Union and high in the United States. The authors claim that the legal system of public and private law within the Unites States facilitates labor mobility, whereas legal regulations in the European Union restrict mobility. The authors argue that mobility in the United States, while still greater than the European Union, has declined in response to long-term changes in concentration of populated areas, demographic characteristics, and social institutions. They examine the causes and determinants of mobility, asserting that in addition to legal differences, demographic characteristics, such as age, marital status, gender, and educational attainment often influence mobility. In conclusion, the authors caution against the assumption that the labor mobility gap between the European Union and the United States is as vast as common surmised. Rather, they claim, the mobility gap is ever changing in accordance with the influence of demographic characteristics and regulations governing labor markets. The authors also opine that while overall labor mobility in both regions are declining, there are advantages to residential stability, and that more mobility is not necessarily the most desired outcome.

Subjects: Case Studies: Country-Specific, European Union, Immigration, Labor Mobility
Newsletter: Vol 6, Issue 1
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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
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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
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Labadie-Jackson, Glenda, "Reflections on Domestic Work and the Feminization of Migration", Campbell Law Review v. 31 no1 (Fall 2008) p. 67-90

Abstract:
This article begins by describing the modern trend whereby women in countries that lack policies to help facilitate a work-life balance pass household responsibilities onto domestic workers. Domestic workers, in turn, pass their own domestic and reproductive labor onto close female relatives. The author notes that due to a seemingly universal view of domestic labor as feminine, men are largely missing from this “global care chain.” The article then summarizes how modern globalization has fueled a recent surge in immigration, particularly female labor migrants. In analyzing conditions of domestic work, the article depicts some common traits: low pay, low hours, physical and psychological abuse, isolation, and job insecurity. Reasons for such poor labor conditions, according to the author, include: perceptions of domestic work as a “private matter,” casual employment conditions, and failure to regulate domestic labor on a domestic and international level. The article concludes by stressing the need to implement current international worker protections, as well as develop domestic protections that would cover domestic workers.

Subjects: Case Studies: Industry-Specific, Employment Law, Immigration, Women’s Rights
Newsletter: Vol 10, Issue 1
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Lan, Na, "Is There New Hope in Labor Rights Protection for Chinese Migrant Workers?", Asian-Pacific Law and Policy Journal v. 10 no2 p. 482-518

Abstract:
This article examines the status of labor rights for Chinese migrant workers: rural Chinese residents who travel to China's major cities to work for wages that they send back to their families. It begins by noting that while the Chinese government has changed its official position from restricting worker migration to facilitating it, the jobs that migrants find in cities are still underpaid, overly long, unsafe, insecure, and fraught with anti-migrant discrimination. The article then points out that many Chinese workers' rights laws, including the recently enacted Labor Contract and Employment Promotion laws, are technically applicable to migrant workers. Finally, the article turns to the question of how these legal protections can be applied to migrant workers. Many migrant workers do not know about workplace protections or how to bring claims in court. As a solution, the author suggests stronger public interest legal services and enhanced trade union roles in the workplace. Finally, the author suggests that the Chinese government continue to push against anti-migrant discrimination, as well as reform social security so it is tied to individuals, rather than households because the latter tends to exclude migrant workers.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, China, Employment Law, Immigration
Newsletter: Vol 10, Issue 5
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Layne, Joseph D., "Fighting a Losing Battle: IRCA'S Negative Impact on Law Abiding Employers ", Loyola of Los Angeles Law Review v. 44 (Summer 2011) p. 1431-1475

Abstract:
The author argues that the passage of the 1986 Immigration Reform and Control Act (“IRCA”) has created incentives for employers to hire and exploit undocumented workers. The IRCA made it illegal to hire undocumented workers to work in the US without documentation, and shifted the responsibility for compliance to the employer. Employers face sanctions for knowingly hiring undocumented workers, but these sanctions are too weak to deter unscrupulous practices, particularly in the wake of the Supreme Court’s decision in Hoffman Plastics v. NLRB, in which the Court held that undocumented workers cannot receive backpay when t heir employer violates the National Labor Relations Act (“NLRA”). The author shows that an employer who violates the IRCA by hiring undocumented workers, and violates the NLRA by interfering with their right to unionize will save thousands of dollars per employee over an employer who hires citizen workers and remains neutral to collective bargaining efforts. The author recommends that Congress repeal the IRCA and reinstate the full range of NLRA remedies for undocumented workers.

Subjects: Collective Bargaining, Immigration, Labor Mobility, United States
Newsletter: Vol 12, Issue 8
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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
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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
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Mariconda, Stephanie L., "Breaking the Chains: Combating Human Trafficking at the State Level", Boston College Third World Law Journal v. 29 no1 (Winter 2009) p. 151-187

Abstract:
Recognizing a human rights crisis in human trafficking within the U.S., Mariconda argues that, while there is some federal legislation that combats human trafficking, additional state measures are required in order to effectively combat this crisis. Arguing that better protection of human trafficking victims can only be accomplished by understanding the economies that benefit from trafficking, Part I summarizes the industries -- sexual slavery, domestic servitude, and forced hard labor -- in which trafficking is the most pervasive, analyzes the factors that contribute to continued human trafficking, and quickly surveys the effects of human trafficking on victims. Part II appraises three pieces of federal legislation that currently provide relief to victims of human trafficking: the Mann Act, the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, and the Trafficking Victims Protection Act (TVPA). Finally, in Part III, Mariconda argues that state legislation is needed to supplement federal anti-trafficking legislation; describes a Massachusetts anti-trafficking bill currently under consideration, and contrasts the Massachusetts bill with state anti-trafficking law in other states. Mariconda urges the Massachusetts legislature to pass anti-trafficking bill and urges other states to quickly follow suit.

Subjects: Forced Labor, Immigration, Sex Workers, Slavery
Newsletter: Vol 9, Issue 12
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Massie, Laura, "Workers of the World, Unite?: Politics of Guestworker Protection and U.S. Worker Protection in the Current Guestworker Debate", Georgetown Journal on Poverty Law and Policy v. 15 no2 (Summer 2008) p. 315-333

Abstract:
This article begins by tracing the history of guestworker programs in the U.S., from the Bracero program during the 1940s to 1960s, to current H-2 programs. These programs have consistently left guestworkers vulnerable to abuse, due to lack of visa portability, unscrupulous recruiters and insufficient access to the courts, among other factors. Guestworkers' rights advocates disapprove of the treatment of guestworkers, while proponents of restricting immigration object to downward pressure on U.S. working conditions caused by the presence of guestworkers. The author considers the possibility of these groups working in coalition either to strengthen guestworker protections or to curtail the programs. She concludes that cooperation is unlikely because philosophical differences between guestworker advocates and restrictionists overshadow convergence on particular policy goals.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility
Newsletter: Vol 8, Issue 12
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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
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Neal, Alan C., "Lessons from the Nordic Countries -'Basic Building Blocks' for an Enlarged Common European Labour Market", International Journal of Comparative Labour Law and Industrial Relations v. 20 no3 (2004) p. 339-367

Abstract:
This article details the ways in which the Nordic countries have established a common labor market. The author describes the historical pattern of migration between the Nordic Countries (Denmark, the Faroe Islands, Greenland, Finland, Aland, Iceland, Norway, and Sweden) and the legal structure of the common market agreement. He also assess effectiveness of the common labour market. The author asserts that the Nordic countries' successful approaches to migration were the result of co-operation, deliberate measures to strengthen social and cultural ties across state boundaries, and the development of a complementary legal approaches to migration. The author provides a historical account of the creation of the legal framework of the Nordic countries' common labour market, providing in-depth understanding of the Danish- Swedish Convention of 1946, the 1954 Common Nordic Labour Market Agreement, and the Convention of 1984. In conclusion, the author asserts that the Nordic approach to common labour markets, despite providing limited labour mobility, provides a fundamental and ideal model of a legal and structural framework for establishing common labour markets.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility
Newsletter: Vol 6, Issue 1
 
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
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Ohmi, Naoto, "Problems of Foreign Worker Policy in Japan - From the Labor Union Viewpoint", Japan Labor Review v. 2 no4 (Fall 2005) p. 107-124

Abstract:
The author, a trade union officer, expresses his views on the issue of foreign workers in Japan. The first section reviews the various issues that arise with the increased number of non-Japanese workers in Japan, including the rise of indirect employment (i.e., dispatch or contract workers), the rise of foreign residents working illegally, and the abuse of foreign trainee programs by employers. The next section discusses Japan's increased focus on free trade agreements ("FTA") and economic partnership agreements ("EPA") with other countries. The author focuses on occupations in the medical and nursing field where there is a shortage in Japan and conflicting views by the Japanese government in allowing foreign workers to fill that gap. The author then examines Rengo's (Japan's nationwide organization of labor unions) views on foreign workers, which advocates the respect of human rights of all foreign workers residing in Japan, but cautions against the acceptance of unskilled foreign workers. The fourth section examines the economic partnership agreements that Japan has with Thailand and the Philippines, both which require the foreign workers from their respective countries to obtain Japanese certification before they are allowed to work in the nursing field in Japan. The article concludes with a discussion of the current labor policy on foreign workers. He argues that the existing policy of only addressing 'entry' issues (i.e., entry requirements, residential statuses) is not sufficient to respond to the issue of foreign workers in Japan, and stresses the importance of adopting a 'post-acceptance' policy to deal with the long-term social and economic effects.

Subjects: Case Studies: Country-Specific, Contingent Work, Free Trade Agreements, Immigration, Japan
Newsletter: Vol 5, Issue 5
 
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
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Prelipceanu, Raluca, "The New Migration Patterns of Educated Romanians to the EU: What Challenges for the Individuals and for the Nation-State", Romanian Journal of European Affairs v. 8 no4 (2008) p. 75-87

Abstract:
Recent years have seen a spike in migration of highly educated Eastern European professionals to European Union member countries. That migration has been driven by the draw of more financially remunerative work and has been facilitated by the immigration policies of European Union member countries which tend to favor highly skilled workers. This article explores the effects of that migration though a case study of highly skilled Romanian immigrants living in France. These immigrants face challenges with social and professional integration in France, but are able to maintain close ties to Romanian because of the rise of cheap travel and communication. The maintenance of these close ties in turn facilitates a convergence between the two cultures. This article concludes that the challenge now facing the Romanian government with respect to this migration is how to encourage the positive effects of this convergence throughout the Romanian economy.

Subjects: Case Studies: Country-Specific, Contingent Work, European Union, Immigration, Labor Mobility
Newsletter: Vol 8, Issue 3
 
Roth, Paul, "Migrant Labor in New Zealand", Comparative Labor Law & Policy Journal v. 31 no1 (Fall 2009) p. 67-89

Abstract:
This article provides an overview of migrant labor in New Zealand. Following a description of the geographic, social, economic, and political factors that contribute to New Zealand’s migrant labor law and policy, the article explains that the country’s current policy regarding unskilled or low-skilled labor represents a delicate balance among several factors, some of which are in competition or conflict. Some factors include the country’s attempt to regularize seasonal employment, regional foreign aid commitments, the rise of domestic unemployment, and concerns about worker exploitation. The article then delves into a discussion of New Zealand’s current international human rights obligations relevant to the protection of migrant workers, as well as the country’s domestic compliance with these obligations. Roth notes that while migrant workers are entitled to the protection of all human rights-related legislation, they are not entitled to protection from discrimination under the country’s current immigration law. Finally, the article concludes with a detailed overview of the various government programs that currently apply to migrant labor in New Zealand.

Subjects: Case Studies: Country-Specific, Immigration
Newsletter: Vol 10, Issue 4
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Rudrappa, Sharmila , "Cyber-Coolies and Techno-Braceros: Race and Commodification of Indian Information Technology Guest Workers in the United States ", University of San Francisco Law Review v. 44 (Fall 2009) p. 353-372

Abstract:
The author argues that U.S. guest worker programs, known also as H-2 and H1-B temporary work visa programs, commodify and often exploit the labor of primarily non-white foreign workers. The author recounts the history of non-citizen workers in the U.S. and finds a contradiction: though the majority of labor law and policy clearly proscribes the commodification of labor, foreign workers’ labor has been, and continues to be, treated as a commodity that can be imported or exported at will. The author identifies several respects in which treating foreign workers’ labor in this way benefits capital to the detriment of both native and foreign workers. First, guest workers are generally not part of established bargaining units, and weaken unions and depress wages. Second, since H-2 and H-1B workers’ immigration status is tied to their employment, they are less likely to organize, strike, or demand better working conditions. Third, countries receiving foreign workers do not need to provide the costs associated with producing and maintaining a permanent labor force, such the cost of training workers and the cost of unemployment benefits. The author argues that the result of U.S. immigration policies is to create a racialized, non-white underclass whose laboring bodies are disposable and whose humanity is denied.

Subjects: Flexibilization, Immigration, Labor Mobility
Newsletter: Vol 12, Issue 8
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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
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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
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Secunda, Paul M., "'The Longest Journey, With A First Step': Bringing Coherence to Sovereignty and Jurisdictional Issues in Global Employee Benefits Law", Duke Journal of Comparative and International Law v. 19 (2008) p. 107-140

Abstract:
The ERISA law has serious limitations in coverage for Americans working abroad and for foreign employees working in the U.S. This article explores these problems, and identifies statutory and judicial changes that could bridge these gaps. On the legislative front, the author suggests two changes. First, Congress should expand ERISA to apply to Americans working in foreign countries where there is no conflict with the laws of that country. This expansion would be of a very limited nature, and would not apply to non-American employees of American companies operating abroad. Second, Congress should reform immigration law to include a provision that provides that lawful immigrant workers enjoy the same protections under ERISA as their U.S. national counterparts. In the judicial sphere, courts should look to the policies underlying ERISA, along with the dissent in Hoffman Plastics, to support a finding that undocumented workers are eligible for relief under ERISA.

Subjects: Case Studies: Country-Specific, Extraterritorial Application of Law, Immigration, Pensions
Newsletter: Vol 7, Issue 12
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Shipper, Apichai W., "Contesting Foreigners' Rights in Contemporary Japan", North Carolina Journal of International Law and Commercial Regulation v. 36 no3 (Spring 2011) p. 506-566

Abstract:
In Japan, population decline has led to a rise in incoming foreign workers. This article analyzes the dynamic interplay of national Japanese policy, which provides for tiered citizenship and political rights based on race, culture, and possession of special skills, against local policy, which is characterized by increasing government-NGO partnerships helping to advance immigrant workers’ rights on and off the job. The tension is evident in Japanese Government raids on workplaces for undocumented workers. Furthermore undocumented workers are excluded from the National Health Insurance (NHI) and are subject to oppressive workplace conditions. In response, local governments have begun providing direct workplace services and set up foreign advisory councils. Meanwhile, Japanese NGOs are pushing for increased enforcement of human trafficking laws, equitable reform of immigration laws, and curbing abuses in immigrant worker training programs. The author points out that these NGOs are collaborating with local governments in order to ease the burden of providing direct services to immigrants, as well as to provide the undocumented with a voice in local government.

Subjects: Case Studies: Country-Specific, Immigration, Japan, Workplace Discrimination
Newsletter: Vol 11, Issue 3
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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
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Tiefenbrun, Susan W, "Sex Slavery in the United States and the Law Enacted to Stop it Here and Abroad", William and Mary Journal of Women and Law v. 11 (2005) p. 317-378

Abstract:
Professor Tiefenbrun discusses the impact of the U.S. Trafficking Victims Protection Act (TVPA), enacted in 2000. The author observes that in the U.S. the statute has refocused government on assisting trafficking victims and punishing the perpetrators, rather than treating the victims as criminals under the prostitution and immigration laws. Tiefenbaum notes that the TVPA has spurred the enactment of new criminal statutes that streamline prosecution and provide harsher penalties for traffickers; train immigration and law enforcement personnel to recognize potential victims; and provide victims with "T-visas" and witness protections programs. Internationally, the author argues that the TVPA has led to increased cooperation between the United States and other countries to eliminate sex trafficking. Finally, Tiefenbaum discusses the impact of reports that TVPA requires the Department of State publish each year detailing other nations' efforts and success at reducing trafficking. The author contends that these reports have caused many countries to increase their anti-trafficking efforts, in part because the U.S. began issuing economic sanctions in 2003 against low-ranking countries.

Subjects: Forced Labor, Immigration, Women’s Rights
Newsletter: Vol 4, Issue 8
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Tripathi, Ragini, "The H-2B Visa: Is This How We Treat a Guest?", Scholar: St. Mary's Law Review on Minority v. 11 (Spring 2009) p. 519-558

Abstract:
Focusing on the March 9, 2008 incident when Signal International held a group of Indian guest workers hostage off the coast of Mississippi, this article discusses the limitations of the H2-B temporary guest worker program. Part I sets forth the inquiry of why H2-B visa holders are subject to inadequate legal remedies and labor abuse. Beginning with the Bracero Program following World War Two, Part II traces the history of the guest worker program in the United States. Part III describes the guest worker’s plight as “contract slavery,” a form of modern slavery. This section explains how employers avoid traditional contract enforcement through use of international subcontractors. Tripathi points to recent case law illustrating how the Fair Labor Standards Act can be extended to better protect H-2B guest workers in these nontraditional contractual arrangements. The subsequent sections examine various outlets for guest workers to learn of their rights and obtain legal assistance, and consider two ways to reform immigration laws to prevent labor violations. The article concludes by calling for more stringent laws and effective enforcement mechanisms to protect guest workers in all industries.

Subjects: Case Studies: Country-Specific, Flexibilization, Immigration, Labor Mobility
Newsletter: Vol 9, Issue 10
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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
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Yasseri, Sanam, "Out of the Shadows: A Call to End the Exploitation of Non-Agricultural Migrant Workers by Reforming the U.S. H-2B Guest Worker Program", Southwestern Journal of Law and Trade in the Americas v. 15 no1 (2009) p. 361-382

Abstract:
The article begins by summarizing past and present guest worker programs, beginning with the Bracero Program, which facilitated employment of Mexican workers in U.S. farms during the middle of the twentieth century. The author then discusses current guest worker visas, including the H1-B for skilled workers, the H-2A for agricultural workers, and the H-2B for low-skilled, non-agricultural workers. The article critiques the H-2B program, which applies to landscapers, forestry workers, housekeepers, construction workers and others, on the ground that it fosters high levels of worker debt to unscrupulous recruitment agencies, makes it impossible for workers to change employers, and has inadequate government oversight. The author then proposes a long-term solution based on a Canadian program, in which increased involvement by both the sending and receiving country would replace exploitative recruiters with more accountable government agencies. In the short term, however, the author sees unionization of guest workers as the most likely way to enforce those workers’ rights.

Subjects: Case Studies: Country-Specific, Contingent Work, Immigration
Newsletter: Vol 9, Issue 9
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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