This is a forward for the articles submitted for the 2009 Symposium - The Evolving Definition of the Immigrant Worker: The Intersection Between Employment, Labor, and Human Rights Law

NEUMAN, GERALD L.

English

University of San Francisco

\\server05\productn\S\SAN\44-2\SAN201.txt unknown Seq: 1 29-DEC-09 7:39ForewordDangerous IntersectionBy GERALD L. NEUMAN*IN FEBRUARY 2009, the University of San Francisco Law Review con-vened a Symposium for the purpose of investigating The Evolving Defi-nition of the Immigrant Worker: The Intersection Between Employment, Labor,and Human Rights Law. On the eve of the Symposium, the theme wasintroduced by the delivery of the Jack Pemberton Lecture by ProfessorJuan F. Perea, and an ensuing conversation. This Symposium Issueprovides a selection of the intellectually rich interaction among theparticipants in that multi-faceted discussion.It is sobering to conclude that a key term in the emerging defini-tion is vulnerability. The Symposium left no doubt that, in the first dec-ade of the twenty-first century, immigrant workers face many threatsto their rights and interests and lack sufficient means of defense.Those threats vary with matters of status, gender, ethnicity, and othercharacteristics, separately and in combination, but the differences arematters of degree. The threat of deportation, of themselves or familymembers, reinforces the other threats that confront all noncitizensand many citizens in the workplace. The articles published here seekto diagnose these threats and their causes, both proximate and histori-cal, and to identify legal strategies for more effective protection.Professor Perea’s Jack Pemberton Lecture inaugurates the in-quiry by exploring its historical context.1 He shows how U.S. law hasaccommodated the desire of some employers for a dependentworkforce, from the original compromise with slavery to modern ex-clusions from basic labor protections. Those exclusions have some-times been racially motivated and, at other times, havedisproportionately affected members of racial minorities. Today La-* J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law,Harvard Law School.1. Juan F. Perea, Destined for Servitude, 44 U.S.F. L. REV. 245 (2009).241\\server05\productn\S\SAN\44-2\SAN201.txt unknown Seq: 2 29-DEC-09 7:39242 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 44tina and Latino workers inherit legal disabilities that were imposedearlier on African Americans.EEOC Regional Attorney William R. Tamayo provides a more de-tailed view of some of the legacies of slavery and the efforts of theEqual Employment Opportunity Commission (“EEOC”) to combatthem.2 He gives examples of remedies the EEOC has obtained for ra-cial and religious discrimination, sexual exploitation of workers, andhuman trafficking. He emphasizes the agency’s determination to pro-tect both lawful and undocumented immigrants, as well as citizens,against these injuries.In Slavery as Immigration?, Professor Rhonda V. Magee discussesthe need to incorporate the experience of transatlantic slavery intothe historical narrative of U.S. immigration law.3 She analyzes the ad-vantages and risks of this perspective, including a concern about mini-mizing the singular horrors of that regime of official hereditaryservitude. She shows how recognizing the connections between trans-atlantic slavery and modern forms of forced migration and laborexploitation could produce better understandings of both historyand migration policy, and increase solidarity among minoritycommunities.Professor Bill Ong Hing’s Article moves from Immigration andCustoms Enforcement (“ICE”) raids to a broader examination of his-torical racism, institutional racism, and the need for immigration re-form.4 The shocking details of particular recent raids become awindow into the systemic injustice of immigration enforcement tacticsand the current immigration framework, in view of its discriminatoryhistory and present effects. Employer sanctions, he concludes, are nota neutral tool, but a final step in the process of dehumanizing un-documented workers. They should be abandoned, not re-engineered.Immigration reform should aim at accommodating visa demand andreversing the disadvantages that Latin and Asian countries havesuffered.The category of lawful temporary workers provides the subject ofProfessor Sharmila Rudrappa’s Essay, particularly the group she calls“techno-braceros.”5 Although they are high-skilled employees, the de-2. William R. Tamayo, The EEOC and Immigrant Workers, 44 U.S.F. L. REV. 253 (2009).3. Rhonda V. Magee, Slavery as Immigration?, 44 U.S.F. L. REV. 273 (2009).4. Bill Ong Hing, Institutional Racism, ICE Raids, and Immigration Reform, 44 U.S.F. L.REV. 307 (2009).5. Sharmila Rudrappa, Cyber-Coolies and Techno-Braceros: Race and Commodification ofIndian Information Technology Guest Workers in the United States, 44 U.S.F. L. REV. 353 (2009).\\server05\productn\S\SAN\44-2\SAN201.txt unknown Seq: 3 29-DEC-09 7:39Fall 2009] FOREWORD 243pendence of these workers on employers for their continuing pres-ence in the United States renders them vulnerable to exploitation.She finds that the heavy concentration of Indian nationals among theH-1B employees produces a de facto racialized program. Moreover, itlengthens their waiting time for achieving the more secure status ofpermanent residence, because of statutory country quotas. The at-tendant commodification of their labor deprives them of citizenshipand denies their humanity.Professor Lorraine Schmall returns us to the subject of unautho-rized workers, undertaking an empirical inquiry into the pattern offederal worksite enforcement actions.6 She pulls together the sporadi-cally reported data on ICE raids, particularly in the period 2007–2008,and compares the government’s actual behavior with its rhetoric. Shefinds little evidence that the raids served their ostensible national se-curity function, and she shows that sanctions were imposed primarilyon employees, not on employers. She also questions why the arrests ofemployers that did occur appeared to disproportionately involvemembers of minority groups. Ultimately, she concludes that a largegap separates the government’s asserted goals and its accomplish-ments in that period.The final two articles address the workplace rights of undocu-mented immigrants, particularly in the wake of the Supreme Court’sHoffman Plastics7 decision, which forbade the National Labor RelationsBoard (“NLRB”) to award back pay remedies to undocumented immi-grant workers dismissed in retaliation for supporting a union. Thatfive-to-four decision is widely regarded as depriving the NLRB of itsonly effective means of protecting the organizational rights of un-documented workers.Professor Ellen Dannin’s ironically titled analysis offers evidencethat the victims were vulnerable primarily as undocumented immi-grant workers.8 She shows that the weakness of federal labor law gener-ally, and the ability of retaliating employers to shield themselves byidentifying wrongful acts of their employees, often undermines theNLRB’s protective efforts. She explains this ineffectiveness as resultingfrom a preponderant tradition of judicial hostility to labor law en-forcement, rather than congressional direction. Given the tendency of6. Lorraine Schmall, ICE Effects: Federal Worksite Non-Enforcement of U.S. ImmigrationLaws, 2007–2008, 44 U.S.F. L. REV. 373 (2009).7. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).8. Ellen Dannin, Hoffman Plastics as Labor Law—Equality at Last for Immigrant Work-ers?, 44 U.S.F. L. REV. 393 (2009).\\server05\productn\S\SAN\44-2\SAN201.txt unknown Seq: 4 29-DEC-09 7:39244 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 44judicial interpretation to divert legislative reforms, she argues thatonly a broad strategy including both litigation and public advocacycan establish and maintain a more just order.Does international law offer a better vision for immigrant workers,documented and undocumented? Professor Christopher David RuizCameron shows that Hoffman Plastics contrasts with a variety of inter-national legal regimes that contemplate greater equality of workplacerights for immigrant workers.9 He identifies global human rightsinstruments, conventions sponsored by the International Labour Or-ganization, regional human rights instruments, U.S. free trade agree-ments, and European Union instruments, that either expressly or byinterpretation provide inclusive treatment for various categories of im-migrant workers. He argues that trade unions provide the most viablemeans for protecting workers’ rights, and calls for greater respect forinternational standards guaranteeing access to the institutions of col-lective bargaining without regard to national borders.From the transatlantic slave trade through the fields of Salinas tothe global human rights movement, these articles illuminate the evolv-ing definition of the immigrant worker.9. Christopher David Ruiz Cameron, The Borders of Collective Representation: Comparingthe Rights of Undocumented Workers to Organize Under United States and International Labor Stan-dards, 44 U.S.F. L. REV. 431 (2009).

Dangerous Intersection

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Dangerous Intersection

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