A new hybrid area of law is springing from the sometimes tension-filled, sometimes harmonious, intersections between our nation’s immigration and employment policies. This evolving legal hybrid, what I call immployment law, demands our attention as it has significant, yet too-often underappreciated, implications for the practice of law. Given the longstanding separation between immigration and employment policymaking, why is this hybrid area of law emerging?
Recent labor market trends are a good place to start the immploymentlaw story. In recent decades, foreign workers have been increasingly participating in the U.S. labor force. Indeed, the last time we saw this level of labor-force participation by the foreign-born was during the early years of the twentieth century, when immigration regulations were more permissive. This growing segment of our labor force stands at the crossroads of immigration and employment regulation. As foreign workers, they are simultaneously subject to immigration and employment regulations, thereby encouraging us to consider these two areas of law in relationship to one another.
Even foreign workers who, as a matter of immigration law, are not authorized to work in the U.S. constitute a significant portion of our labor force. In fact, the state of New Jersey has one of the four highest concentrations of unauthorized workers in its labor force. According to a recent report published by the Pew Hispanic Research Center, unauthorized workers constitute close to 10 percent of the labor forces of New Jersey, Texas, California and Nevada. The percentages of unauthorized workers are even more striking when we exclusively consider the labor forces of low-wage occupations and industries. Some analysts, for example, go so far as to estimate that half of our agricultural labor force is unauthorized.
Unauthorized workers illustrate a tension between exclusionary aspects of immigration policy and inclusive aspects of employment policy. Immigration policy excludes these individuals and restricts their access to certain rights and benefits based on their immigration status. In contrast, because of their status as “employees,” employment policies often incorporate unauthorized individuals into their baseline protections of such things as employees’ wages and safety.
The emergence of the immploymentlaw hybrid comes into even sharper focus when we consider substantial legislative shifts at the federal and subfederal levels. In 1986, Congress enacted the Immigration Reform and Control Act (IRCA), a fundamental change to our federal immigration policy. IRCA mirrors some of the traditional aspects of employment regulations by focusing on the employer-employee relationship and the workplace as key targets of enforcement. Prior to 1986, the workplace had been absent from federal enforcement initiatives to reduce unauthorized immigration. Frustrated by the large number of unauthorized workers in the labor force, Congress hoped to turn off the valve of unauthorized immigration by regulating the workplace. Thus, through IRCA, Congress required employers to verify the work authorization of their employees and created sanctions for employers who knowingly employed unauthorized workers.
IRCA, however, not only crosses into the traditional terrain of employment regulation by bringing immigration verification and restrictions into the workplace. Through IRCA, Congress also created brand new employment protections for employees. Because of fears that some employers would refuse to hire noncitizens who were authorized to work, or would use national origin as a proxy for work authorization, Congress included explicit protections against employment discrimination based on citizenship status and national origin. As part of IRCA, Congress also established an agency to enforce these new employment protections and empowered employees to bring administrative complaints. Therefore, even though IRCA is formally an immigration law given its location in the United States Code, it is also an employment policy because aspects of IRCA bolster Civil Rights Act protections against employment discrimination.
The federal government is not alone in enacting immploymentlaws.Since 2005, state and local governments have been increasingly legislating in the immploymentlaw area as well. Along with immigration laws that target such things as public benefits, education and housing, subfederal governments have enacted laws that are similar to IRCA in that they intend to restrict unauthorized immigration via the workplace. In this way, these subfederal laws can be loosely described as “mini IRCAs.” Nonetheless, it is important to note that these laws are often dissimilar from IRCA in significant ways. Unlike IRCA, for instance, some subfederal governments require all employers to use an electronic verification system (“E-Verify”) rather than the paper I-9 form process. Others have gone even further and created new types of verification procedures. Moreover, in contrast to IRCA, some subfederal governments have even created causes of action that allow authorized employees to bring legal claims against their employers because their employers have allegedly employed unauthorized employees. There is a burgeoning area of litigation related to the enforcement, as well as the constitutionality, of these laws.
Labor force changes and legislative events at the federal and subfederal levels are only part of the immploymentlaw story. Since the 1980s, some courts have begun to engage in what I refer to as immploymentlaw analyses. In other words, these courts simultaneously consider both immigration and employment policies within the same case. The U.S. Supreme Court, for instance, has engaged in immploymentlaw analyses in two cases involving the National Labor Relations Act (NLRA). In its 1984 Sure-Tan v. NLRB decision, the Court was faced with the question of whether an unauthorized worker who otherwise fell within the NLRA’s definition of “employee” lost NLRA protection because of his immigration status. The Sure-Tan Court considered both immigration and labor policies to determine that unauthorized employees do have collective action rights under the NLRA. According to the Court, this labor law holding is consistent with immigration policy because it reduces employer incentives to hire unauthorized workers.
Similarly, the Supreme Court’s 2002 Hoffman Plastic Compounds vs. NLRB decision, and its progeny, demonstrate the rise of immploymentlaw analyses in the courts. The Hoffman Court was asked whether an unauthorized employee can receive back pay to remedy his employer’s NLRA violation. By considering both labor and immigration policies, the Hoffman Court engaged in immployment law analysis to answer this question in the negative. In fact, the immigration policies underlying IRCA were the reason the Court cited for its denial of NLRA back pay. In the Court’s view, awarding back pay in this instance would impair federal immigration policy goals by condoning prior violations of immigration law and encouraging future violations. Hoffman’s four dissenting justices also engaged in immploymentlaw analysis but reached a different conclusion. For the Hoffman dissenters, providing NLRA back pay would support immigration policy goals by making unauthorized employees less attractive to employers. Post- Hoffman immploymentanalyses have proliferated as lower courts grapple with Hoffman’s implications for unauthorized employees’ access to other kinds of remedies when they experience violations of their employment protections.
As the Sure Tan and Hoffman examples illuminate, the rise of immploymentlaw has implications for the practice of law in cases involving unauthorized employees’ workplace protections. Nonetheless, immploymentlaw has implications outside of thiscontext as well. For instance, we should use an immploymentlaw pre-emption framework to evaluate the constitutionality of the subfederal mini IRCAs referenced above. To date, pre-emption analyses of these subfederal immigration laws have exclusively focused on whether they are in conflict with federal immigration policies. Given the growth of the immploymentlaw hybrid, however, pre-emption analyses of these subfederal laws should consider not only whether these subfederal laws are in conflict with federal immigration policies, but also whether they are in conflict with federal employment policies.
An immploymentlaw perspective illustrates that mini IRCAs implicate federal employment policies that are embedded within IRCA and federal employment statutes. Developed immploymentpreemption theories were not directly before the Supreme Court in Chamber of Commerce v. Whiting, when it recently concluded that IRCA does not pre-empt Arizona’s mini IRCA. In the future, however, immploymentpre-emption theories may gain more traction as lawyers develop and employ these hybrid theories and as courts consider mini IRCAs that stray even further away from IRCA than Arizona’s did.
In sum, we should acknowledge and more fully explore the emergence of immployment law because of the recent growth of the number of foreign workers in the U.S. labor force, as well as the emergence of legislation and court analyses that simultaneously implicate immigration and employment policies. If we more comprehensively examine the relationship between immigration and employment policy concerns at the federal and subfederal levels, we can discover potential conflicts, harmonious interactions and opportunities that we would otherwise overlook.