Kati L. Griffith
Excerpted from: Kati L. Griffith , Law Undocumented Workers: Crossing the Borders of Immigration and Workplace Law, 21 Cornell Journal of Law & Public Policy 611 (Spring 2012)(131 footnotes omitted).
Each year millions of immigrants labor in workplaces across the country, even though they do not have proper au case law, enforcement, and advocacy developments in the immployment law area. It also builds on the contributions of leading experts and scholars in this issue of the Cornell Journal of Law and Public Policy and at a recent workshop organized by Cornell University's Institute for the Social Sciences. The workshop, similar to this Article, was entitled "Undocumented Workers: Crossing the Borders of Immigration and Workplace Law" (hereinafter the "Crossing the Borders Workshop"). thorization from U.S. immigration authorities to do so. As "undocumented workers," they uncomfortably straddle two legal regimes: immigration law and workplace law. Because of their undocumented immigration status, immigration law formally excludes these workers from such things as voting, the workplace, and access to most federal public benefits. As a matter of immigration law, they are not allowed to be present in the United States at all. Nonetheless, because of their status as employees who perform labor, "workplace law" simultaneously provides them with workplace protections related to wages, health and safety, collective action with their co-workers, and employment discrimination based on race, color, religion, sex, ethnicity, and national origin. In this way, undocumented workers exemplify a new trend in law that questions long-held notions about the separation between immigration law and workplace law. Typically, immigration law and workplace law have been considered discrete areas of legal inquiry with entirely separate policymaking processes. Thus, it is no surprise that the majority of professional associations, law journals, law conferences, law school courses, and legal scholars separately address immigration law on the one hand and workplace law on the other. Moreover, there has been significant scholarly focus on the ways that these two areas of law have distinct policy rationales and enforcement schemes. Legal scholars have often emphasized, for instance, that public entities traditionally enforce immigration law while private entities traditionally enforce workplace law through employee-initiated complaints.
Despite these seemingly distinct lines of inquiry, a growing community of scholars has started to break down the boundaries between immigration and workplace law. As I have argued elsewhere, a new hybrid area of law has emerged, what I call immployment law, at the crossroads of immigration and employment policies. Through its focus on undocumented workers in particular, this Article further justifies the need to move away from the immigration law-workplace law dichotomy and to more fully embrace immployment law as a crucial field of inquiry. Because this nascent "field" is somewhat fragmented and constituted by a diverse set of actors (scholars, legislators, courts, enforcement agents, and advocates), there is a pressing need for a more integrated understanding of the sometimes complementary, sometimes conflict prone, relationship between immigration law and employment policies. This Article endeavors to comprehensively outline the emerging field of immployment law. As this Article specifies below, this field broadly includes empirical, legislative, administrative, judicial, and other analytical inquiries and trends involving workers who bridge the divide between immigration law and workplace law. This Article also proposes directions for future research in this area. Namely, it raises a broad array of compelling questions that merit intensive scholarly, judicial, and policy analysis moving forward. As this Article will show, a hybrid analytical lens reveals otherwise obscured areas of inquiry. It thereby encourages scholars, policymakers, enforcement agency officials, and courts to more comprehensively develop immployment frameworks and research agendas that directly consider the interaction between immigration and employment protections for employees. To support these contentions, this Article draws from a variety of recent scholarly, legislative,
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Recent empirical trends in immigration demand that we embrace, and more thoroughly examine, the intensifying interaction between immigration and workplace law. Specifically, the large and growing number of undocumented workers in the United States is a compelling reason for crossing the borders of immigration and workplace law. These workers, as described above, have a legally-constructed dual personality as they are simultaneously regulated by immigration law and workplace law.
While the percentage of undocumented workers in the U.S. labor force (5.2 percent) may seem fairly modest to some observers, data show that undocumented workers represent a significant presence in particular occupations. Table 2 illustrates that, in 2008, twenty-five percent of individuals engaged in the farming occupational group were undocumented. Some analysts believe that this estimate is conservative and that the percentage of undocumented workers in this occupation is actually much higher. The U.S. Department of Labor, for instance, has estimated that more than half of all of the farmworkers in the United States are undocumented immigrants. As Table 2 demonstrates, undocumented workers play a prominent role in other occupational groups as well. An estimated seventeen percent of construction workers and nineteen percent of workers in building, grounds-keeping, and maintenance are undocumented. Along with their concentration in particular occupational groups, undocumented workers are concentrated in particular states and regions of the U.S. as well. Among the states with the highest percentages of undocumented workers in their state workforces are, for instance, Nevada with 10 percent, California with 9.7 percent, Texas with 9 percent, and New Jersey with 8.6 percent.
Thus, the recent data on undocumented workers' labor force participation challenges the historical divide between immigration and workplace law. This is the case because these significant labor force participants are simultaneously subject to both legal regimes. II. Workplace Law Violations Against the Undocumented The apparent rise of workplace law violations against undocumented immigrant workers is another reason to scrutinize the crossroads between immigration and workplace law. Annette Bernhardt's presentation at the Crossing the Borders Workshop, entitled "Unregulated Work: The Perfect Storm of Economic Restructuring and Immigration Policy," illustrated the prevalence of workplace law violations against low-wage workers in general and undocumented immigrant workers in particular. Her presentation was based largely on 2008 survey data of low-wage workers in the three largest U.S. cities. This study is one of the few existing empirical evaluations of workplace law violations in low-wage and immigrant industries. According to the survey, low-wage undocumented workers are more than twice as likely to suffer minimum wage violations in the workplace as low-wage U.S.-born workers. While 15.6 percent of all of the U.S-born workers surveyed experienced minimum wage violations in the week before the survey, 37.1 percent of undocumented workers experienced minimum wage violations during that same period.
The survey results on overtime violations against low-wage workers follow a similar pattern. Almost 85 percent of undocumented workers experienced an overtime violation in the workweek before the survey. In contrast, 68.2 percent of U.S.-born workers suffered an overtime violation in the week before the survey. Strikingly, the survey results signify that undocumented women workers experienced these violations at much higher rates than undocumented males. Undocumented women workers suffered minimum wage violations at a rate of 47.4 percent. In comparison, 29.5 percent of undocumented men experienced minimum wage violations.
Since there is such scarce empirical data on workplace law violations in low-wage and immigrant workforces, scholars should continue to research these trends. The existing data on workplace law violations in low-wage and immigrant workforces provides, nonetheless, another justification for evaluating the interaction between immigration and workplace law. The above survey findings demonstrate a significant correlation between undocumented immigration status and instances of workplace law violations, when compared to workplace law violations against U.S.-born workers. Given these survey findings, future scholarship should investigate both why low-wage undocumented immigrant workers experience workplace law violations at higher rates than their U.S.-born counterparts and what can account for the gender differences in the findings.