May 9, 2009
Article of Interest: Keith Cunningham-Parmeter on Redefining the Rights of Undocumented Workers
Scholars have criticized these losses but have yet to formulate a coherent framework for evaluating the employment rights of unauthorized immigrants. This article does so by distilling and applying several core principles at issue when employment laws conflict with immigration laws. I begin by explaining how the text and purpose of selected immigration and employment statutes show that Congress never intended to restrict unauthorized immigrants’ employment rights. Remedial restrictions not only harm the workplace protections at issue, they fail to discourage illegal immigration. Thus, neither legislative intent nor national immigration goals justify limiting the workplace remedies available to unauthorized immigrants.
Although the future rights of unauthorized workers will turn partly on the issues of statutory purpose and immigration policy discussed in the early sections of the article, equally important are the consequences of diminished rights. Accordingly, I conclude the article by explaining why restricting workplace protections based on status harms citizens as well as immigrants. I contend that employment protections are “rights of partial inclusion” that reflect a distinctive sphere - the workplace - where unauthorized immigrants should be placed on par with citizens in pursuing collective interests. In contrast to arguments that favor limiting resources to lawful residents, partial inclusion explains how employment protections can effectively preserve national identity while simultaneously enhancing unauthorized immigrants’ incentives for social investment. In doing so, partial inclusion furthers the community’s self-definition, while providing unauthorized immigrants with a sense of belonging in a world increasingly focused on their exclusion.
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