carapace – Not your father's america

Not only that, adds Yvette Cho of the National Employment Law Project, but the draft Senate bill also overturns a prior U.S. Supreme Court decision that denies net back pay to undocumented workers whom employers illegally fire for union activities.

Whether labor law covers the undocumented workers is important to all workers, documented or not. That’s because, as unions repeatedly discover, venal, vicious, law-breaking employers manipulate the presence of the undocumented in two ways.

First, employers exploit the undocumented by hiring them at low wages and impossible conditions, secure in the knowledge the workers can’t fight back for fear of deportation. Second, firms threaten other workers with firing and being replaced by the undocumented unless the other workers agree to cuts in wages and working conditions.

So bringing the undocumented workers under labor law coverage is a key goal of unions campaigning for workers’ rights under the comprehensive immigration reform.
Not only would such a guarantee let unions try to organize the workers, but it would also deter companies from calling in federal Immigration and Customs Enforcement agents to deport undocumented workers who dare to talk union or raise questions.

The key provisions that imply that labor laws – including the National Labor Relations Act, wage and hour laws and the Occupational Safety and Health Act – cover the undocumented workers are Sections 2101 and 2102 of the draft Senate bill. Section 2101 lists rights available, and what rights are not, to undocumented workers once they become “registered provisional immigrants,” the first step on the legal road.

“A noncitizen granted registered provisional immigrant status under this section shall be considered lawfully present in the United States for all purposes while such noncitizen remains in such status, except that the noncitizen is not entitled to the premium assistance tax credit” in the Affordable Care Act to help pay for health care coverage, or any other benefits of the 2010 health care law, it says.

That leaves all other legal protections open for the undocumented workers, once they register, including labor law protections.

“Undocumented workers are under the protection of labor laws, and it fixes Hoffman Estates, too,” says Cho, referring to the High Court ruling denying the workers net back pay.

“There isn’t any particular phrasing that says when the undocumented workers shall be covered by, and employers subjected to, the Fair Labor Standards Act, the Occupational Safety and Health Act and the National Labor Relations Act,” she continues. “But there is sufficient jurisprudence out there saying that they’re protected.”

An undocumented worker who enters the immigration legalization process would be eligible for “all rights and remedies provided under any federal, state, or local law relating to workplace rights,” section 2102 of the Senate’s draft bill adds.

And the effective date of such protections is when the immigration overhaul would be signed into law, Cho adds.

Section 2102 continues: “A court may not prohibit an employee from pursuing other causes of action” – lawsuits – “giving rise to liability, except any reinstatement remedy prohibited by federal law, on account of (and) including but not limited to back pay, are available to an employee despite” the “employee’s status as an unauthorized alien, either during or after the period of employment by the employer, or the employer’s or employee’s failure to comply with the requirements” of the immigration overhaul law.

The Hoffman Estates ruling said the NLRB could find firms guilty of labor law-breaking when they illegally fired undocumented workers, but the agency couldn’t levy the remedy – ordering the worker get net back pay – if the worker is undocumented.

Section 2102 also says that if the employer illegally fires the worker, citing the immigration law as the reason, “reinstatement shall be available” to the worker “who is authorized to work” in the U.S. or who “lost employment-authorized status due to the unlawful acts of the employer under this section.”

There is at least one other section in the Senate-proposed draft that also apparently backs up workers’ rights for the undocumented. It says that “records of a labor union, day labor center, or organization that assists workers in employment” are among the evidence an undocumented worker can present to show continuous work in the U.S.