Immigrants and the Right to Petition - NYU Law Review

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Imaged with the Permission of N.Y.U. School of Law NEW YORK UNIVERSITY LAW REVIEW [Vol. 78:667 B. Communication Regarding Civil Violations The civil violations most frequently encountered by immigrants are probably those that occur in the workplace, 46 where even undocumented immigrants are protected by some federal 4 7 and state 48 labor and employment laws. But very little empirical research has been done on the labor market conditions of undocumented immigrants. 49 46 Robert L. Bach, Becoming American, Seeking Justice: The Immigrants' Legal Needs Study 8-9 (Inst. for Research on Multiculturalism and Int'l Labor, Binghamton Univ., 1996) (observing that in survey on legal needs of immigrants, "employment problems were the most frequent unmet needs," after adjustment for immigration status); id. at 28 (concluding that results of survey "show[ J that employment was perhaps the most serious problem"). Another survey of 1653 documented and undocumented immigrants found that "[u]ndocumented immigrants report working in unsafe conditions at considerably higher rates relative to immigrants with legal status. Moreover, immigrants without legal status also report [to researchers] alleged wage and hour violations at considerably higher rates relative to documented workers." Chicago's Undocumented Immigrants, supra note 8, at v. "[Ten percent] of undocumented immigrants reported that they are/ were paid less than the federal minimum wage.., on their current/most recent job." Id. at 12. 47 See, e.g., Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) (accepting that undocumented worker was statutory "employee" under National Labor Relations Act, but finding him ineligible for back pay after wrongful discharge where employer was unaware of employee's unauthorized status); Nancy Montwieler, EEOC Limits Undocumented Workers' Relief Based on Recent Supreme Court Decision, 126 Daily Lab. Rep. (BNA) A-2 (July 1, 2002) (noting announcement by Equal Employment Opportunity Commission (EEOC) chair that, after Hoffman Plastic, it "will continue to investigate and protect undocumented workers against employment discrimination"); Scalia Clarifies Labor Department Positions on New Supreme Court Employment Rulings, 120 Daily Lab. Rep. (BNA) C-I (June 21, 2002) (quoting Solicitor of Labor stating Hoffman Plastic decision "should not bar recovery of minimum wages" for undocumented workers under Fair Labor Standards Act (FLSA)); see also NLRB v. Kolkka, 170 F.3d 937 (9th Cir. 1999) (determining that undocumented workers are statutory "employees" eligible to vote in NLRB representation elections); A.P.R.A. Fuel Oil Buyers Group, Inc. v. NLRB, 134 F.3d 50 (2d Cir. 1997) (holding worker eligible for back pay under NLRA where employer knows of worker's undocumented status from date of hire); Patel v. Quality Inn S., 846 F.2d 700 (11th Cir. 1988) (applying FLSA to undocumented worker). See generally Michael J. Wishnie, Emerging Issues for Undocumented Workers, Cross-Border Human Resources-Labor and Employment Issues, Proc. NYU 54th Annual Conference on Labor (forthcoming 2003) (on file with the New York University Law Review) (analyzing labor and employment rights of undocumented workers after Hoffman Plastic decision). 48 See, e.g., Dowling v. Slotnik, 712 A.2d 396 (Conn. 1998) (holding undocumented worker eligible for workers' compensation benefits); Artiga v. M.A. Patout & Son, 671 So. 2d 1138 (La. Ct. App. 1996) (same); Nizamuddowlah v. Bengal Cabaret, Inc. 415 N.Y.S.2d 685 (App. Div. 1979) (ruling that state minimum wage laws cover undocumented worker); see also Cal. Dep't of Indus. Relations, All California Workers Are Entitled to Workplace Protection, at http://www.dir.ca.gov/QAundoc.html (announcing labor agency will continue to seek back pay in retaliation cases "without regard to the worker's immigration status" after Hoffman Plastic) (last visited Apr. 8, 2003). 49 Francisco L. Rivera-Batiz, Undocumented Workers in the Labor Market: An Analysis of the Earnings of Legal and Illegal Mexican Immigrants in the United States, 12 J. Population Econ. 91, 93 (1999) (concluding that undocumented status results in wage penalty but conceding that "little systematic research exists on the labor market status of ille-
Imaged with the Permission of N.Y.U. School of Law May 20031 IMMIGRANTS AND THE RIGHT TO PETITION Furthermore, though common sense suggests that undocumented workers are reluctant to report labor and employment violations to law enforcement agencies for fear they will expose themselves to deportation-and that this reluctance fosters further exploitation 5° - there has been little empirical research on the extent and causes of immigrant underreporting. A 2001 survey of documented and undocumented immigrants by the Center for Urban Economic Development at the University of Illinois-Chicago found widespread underreporting of workplace safety violations. 51 Further, "[o]f the reasons identified for not reporting [unsafe working conditions] to OSHA [the Occupational Safety and Health Administration] ... 30% relate specifically to the fear that workers might be deported if they report the conditions.- 52 The same survey indicated that immigrants gal immigrants"); see also Julie A. Phillips & Douglas S. Massey, The New Labor Market: Immigrants and Wages After IRCA, 36 Demography 233, 244 (1999) (finding significant wage penalty based on immigration status after Immigration Reform and Control Act of 1986). 50 See, e.g., Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law, 1988 Wis. L. Rev. 955, 986 ("Undocumented immigrants commonly decline to report private or official abuse and are frequently unwilling to pursue civil claims in court ...."); id. at 993-94 (contending that likelihood that typical undocumented worker would report wage and hour or safety violations "to the state ... declined due to her fear of exposing herself to deportation"); see also Building Understanding, Creating Change: A Report on the AFL-CIO Forums on Immigrant Workers' Rights 5 (2000) ("Many immigrant workers, documented and undocumented, work and live in fear of the INS, and as a result are wary of asserting their rights under our labor and employment laws."); Foo, supra note 12, at 2182 (explaining that fear of retaliation via INS keeps immigrant workers "silent about the abuses they endure in sweatshops"); Jennifer Gordon, We Make the Road By Walking: Immigrant Workers, the Workplace Project, and the Struggle for Social Change, 30 Harv. C.R.-C.L. L. Rev. 407, 417 (1995) ("[Federal and state laws] promote the creation of an immigrant workforce whose fear of losing its jobs and being deported are easily exploitable."); Dennis Hayashi, Preventing Human Rights Abuses in the U.S. Garment Industry: A Proposed Amendment to the Fair Labor Standards Act, 17 Yale J. Int'l L. 195, 201 (1992) (arguing that undocumented workers "are unwilling to assert their [labor] rights for fear of deportation"). 51 Of the study's respondents, nineteen percent of documented immigrants and thirtysix percent of undocumented immigrants reported unsafe working conditions, but "only 6% of immigrants who indicated that they work in unsafe conditions said that they had contacted [OSHA]." Chicago's Undocumented Immigrants, supra note 8, at 27-28; see also Occupational Safety and Health Administration's Efforts to Protect Immigrant Workers: Hearing Before the Subcomm. on Employment, Safety, and Training of the S. Comm. on Health, Educ., Labor and Pensions, (Feb. 27, 2002) (statement of John L. Henshaw, Asst. Sec'y of Labor for Occupational Safety and Health) [hereinafter Henshaw] (recognizing Subcommittee's concern that "immigrants, and particularly Hispanic immigrants, face a greater risk of occupational injury or death than other populations"), available at http://www.osha.gov/pls/oshaweb/owadisp.show-documentp-table=TESTIMONIES&pid=286&p-textversion=FALSE. 52 Chicago's Undocumented Immigrants, supra note 8, at 28.
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