While the U.S plans to serve on the United Nations Human Rights Council in 2022, it continues to fail at protecting and enforcing human rights protections for undocumented workers. This has resulted in exploitation, in the form of employer threats of deportation, unfair wages, and working in hazardous environments. Much of the research on labor rights protections for unauthorized individuals demonstrates the failed system of human rights policies that the United States has implemented but not enforced. The current human rights system for the United States does not successfully address the violation of human rights for undocumented workers and new policy recommendations will need to be considered to redress this issue.
Prior to 1986, American companies and employers could legally recruit and hire undocumented individuals1. In 1986, pro-immigration groups and unions opposed employer protection laws, where they claimed that the government was not protecting the rights of immigrants against xenophobia or discrimination. The Immigration Reform and Control Act (IRCA) was first introduced to prohibit employers from hiring undocumented workers and requires employers to submit I-9 forms that verify workers’ legal status. The new law established criminal penalties for employers who violated its terms and refused to verify the employees’ documents and prohibits compensation damages to be given to these workers, even after being paid unfair wages. The Fair Labor Standards Act (FLSA) and National Labor Relations Act (NLRA) are two examples of policies that include the rights of undocumented migrants at work, such as being entitled to fair compensation, freedom from unfair labor practices, collective bargaining, etc2.
Although immigration laws and policies that protect the migrant workers’ rights exist, they have not been enforced. The system of current policies has further allowed for the exploitation of undocumented workers. For instance, in 2020, it was reported that there are more than 7 million undocumented workers that were working under an employer aware of their legal status3. The current Biden administration agreed that these workers were essential to the recovery of the nation post-pandemic, and once again, the current immigration and rights implemented to protect these workers from facing low wages and long hours were ignored. This is not a new occurrence. A study conducted by the National Employment Law Project projected that 76% of undocumented workers have worked without compensation and 37% have worked and received less than the minimum wage4.
Two instances where the rights of undocumented workers were not upheld were in the cases of Leopoldo Zumaya in 2004, and Berumen Lizadele in 2005. Both petitioners experienced violations of their rights. Zumaya was injured at work and denied medical benefits, and Lizalde was deported for falsifying a social security number. Although the United State courts claimed, under various laws such as FLSA and NLRA, that the rights of undocumented migrants and workers are protected, that was not the case with Zumaya and Lizadele. The system failed these two workers, and as a result, the Inter-American Commission on Human Rights (IACHR) intervened and informed the United States that the workers should receive equal protection under the law.
Current State of Affairs
The Biden administration has announced that the United States will be rejoining the United Nations Human Rights Council (UNHRC) after its withdrawal in 2018 under the Trump administration. Joining the UNHRC will ensure that U.S human rights laws are patrolled and that the country is not violating international laws on human rights. In addition, it will also ensure that these laws are not overseen for undocumented workers and individuals as a whole, which was seen in previous laws such as the IRCA, FLSA, where the government provided oversight but did not prioritize these policies.
Undocumented workers often work in poor conditions due to not knowing about the rights they are entitled to. Due to a fear of deportation, their vulnerability is a much bigger threat to these workers, which is why I recommend a new policy where a training course at worksites is granted to all individuals, regardless of their legal status. In this course, undocumented workers will learn more about their rights, protections, and would be introduced to the proper resources if faced with an unfair situation at work. Thus, workers would experience less vulnerability from their employers and be able to build a case in court if needed. This new policy would minimalize undocumented worker rights violations. While enacting the courses will require some financial efforts and other resources, it would serve as a critical component to reducing the overall violation of rights in the United States.
The long history of abuse of undocumented worker rights and the cases that have been brought to the spotlight because of violations of rights is still an ongoing issue. Human rights laws in the United States need to be reevaluated and new policies need to be introduced to prevent the violation of undocumented workers' rights. Rejoining the UNHRC is the first step for the U.S. to stop this issue from further occurring but it will not be sufficient to decrease the overall rate at which these individuals are exploited at work. Companies and employers need to require implementing courses that inform their workers about their work rights and help them identify potential violations.
Diane Cruz is a senior at George Mason University, majoring in Government and International Politics with a minor in International Security. She has written various policy memorandums regarding the violations of human rights in the United States and other countries. She finds great interest in international issues, particularly how current immigration laws violate the rights of immigrants.
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Wishnie, Michael J. “Emerging Issues for Undocumented Workers” University of Pennsylvania Journal of Labor and Employment Law, 2004. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1178&context=jbl.