Low Pay, High Risk: State Models for Advancing Immigrant Workers' Rights (revised November 2003)

Current version by Rebecca Smith and Amy Sugimori  National Employment Law Project

To view a .pdf version of the full report, click here. To view the table of contents, click here.               To view the appendix, click here.

Executive Summary

Immigrant workers, especially those who are undocumented, are under attack from many fronts; from the prospect of local police enforcing immigration laws to new systems of information sharing among federal agencies and the proliferation of Social Security Administration “no-match” letters sent out to employers.  The effects of two recent Supreme Court rulings have also made it more difficult for working immigrants to enforce their rights under federal law.  In Hoffman Plastic Compounds v. NLRB,  decided in 2002, the Court held that undocumented workers are not entitled to back pay when they are illegally fired after taking part in organizing campaigns.  In Alexander v. Sandoval,  decided in 2001, the Court held that federal civil rights protections against national origin discrimination could not be asserted directly by individual immigrants.  These decisions and changes in federal law, together with the delay in developing a legalization program for undocumented workers, mean that immigrant workers will often need to turn to state-based labor and employment laws in order to enforce their rights.

Many of the anti-immigrant proposals, both at the federal and state level, can be summarized as measures intended to require more agencies and individuals to enforce immigration law.  This is clearly the case with measures requiring local police to enforce immigration law, but is true to a lesser degree for measures to restrict access to drivers’ licenses, and to place limits on enforcement and remedies available to undocumented workers under labor laws.  In this climate, there are many ways in which state and local governments can act to afford better access to work-related benefits and better protections under existing state labor and employment laws. 

Immigrant workers are demonstrating that they have energy and political strength. In September, 2003 nearly 1000 Freedom Riders, many of them immigrants, traveled on buses through the country in support of immigrant workers' rights.  The Immigrant Worker Freedom Ride (IWFR) ended in a rally attended by over 100,000 immigrants and allies in Flushing Meadows Park in Queens.  The energy and enthusiasm generated by the IWFR must now be focused on federal and state campaigns to ensure that immigrant workers are treated fairly.

In the coming years, immigrant worker advocates should focus campaigns to leverage the power of the states to protect the labor rights of immigrant workers.  The following are examples of successful state and local campaigns:

In 2002 and 2003, New York, Seattle, and Minneapolis, all cities with large immigrant populations,  established measures protecting confidential immigration status information of individual seeking services from police and local agencies;

• In 2003, Georgia, Hawaii, Kansas, New Mexico, and Louisiana passed new expansive drivers’ license laws  that promote public safety by allowing more immigrants access to drivers’ licenses;
• In Maryland, a  law passed in 2002 provides increased access to public benefits including unemployment  compensation, for individuals with limited English proficiency;
• Washington State and California have assured immigrant workers that the U.S. Supreme Court’s decision in Hoffman Plastic Compounds v. NLRB will not affect states’ efforts to protect undocumented immigrants’ employment rights under their own laws.  A law is under consideration in Michigan that would ensure access to workers’ compensation benefits to injured workers regardless of immigration status;
• In Connecticut, a state-level “know your rights” law provides information about labor rights in Spanish and other languages; and
• In California, a law passed in 2002 prohibits “English-only” workplaces.

In Chapter 1, the authors discuss laws that provide language access for workers, including the California and Maryland laws, as well as ordinances passed in San Francisco and Oakland and proposed in New York.  The authors highlight two state-level campaigns:  the Connecticut campaign to provide labor rights information in Spanish and the California campaign to outlaw “English-only” workplaces. The chapter also includes talking points supporting increased access for limited English proficient (LEP) workers.

Around the country, communities are taking a stand against local police cooperation with BICE (formerly the Immigration and Naturalization Service, INS). Communities understand that to require or allow state agency personnel to turn suspected immigration violators over to BICE increases racial tensions, results in violations of civil rights, hinders state and local agencies from doing their jobs, and undermines the very definition of community.  In Chapter 2, the authors highlight measures protecting confidential immigration status information and discuss ways states and localities have taken a stand against being required to help enforce immigration law.

Chapter 3 focuses on immigrants’ access to drivers’ licenses.  It reports surprisingly good news:  in 2002 and 2003 many states considered expanding access to drivers’ licenses because they understand that discriminating against immigrant drivers under the dubious rubric of “anti-terrorism” contributes far less to public safety than ensuring that all drivers are licensed.  Five states recently passed expansive laws that ensure access to drivers’ licenses for all drivers in the state.

Chapters 4 and 5 focus on the aftermath of the U.S. Supreme Court’s ruling in Hoffman Plastic Compounds v. NLRB.  In these chapters, the authors provide tools for state advocates to ensure the continued availability of state remedies for undocumented immigrants.  The authors also highlight state agency pronouncements in Washington State and California as well as a new law in California.