The rights of migrant workers around the world have taken on new shape in recent years as a result of ever-increasing transnational migration flows and the proliferation of population-specific international human rights standards. A number of countries use employment law restrictions to control illegal immigration, believing that such prohibitions will stem the flow of people seeking unauthorized work. In addition to employer sanctions regimes, many countries also afford lesser labor and employment rights to unauthorized workers, relying on theories of deterrence, administrative convenience and unclean hands to justify the differential standards. The Inter-American Court of Human Rights, the Organization of American States’ highest court of human rights, recently challenged receiving-country governments to justify the curtailment of employment and labor rights for unauthorized migrant workers. In an advisory opinion issued September 17, 2003, entitled, Legal Status and Rights of Undocumented Migrants, the court concluded that employment and labor rights must extend to all workers equally, regardless of their immigration status. This conclusion represents a significant expansion of labor and employment rights for unauthorized workers within the international legal community.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.
DOJ guidance for mentally impaired detainees in immigration removal proceedings should be amended to provide counsel at earlier signs of incompetence.