Interamerican Court Condemns Discrimination on the job against Undocumented Workers (November 2003)

The Interamerican Court of Human Rights has issued an advisory opinion establishing that countries violate international law when their labor laws discriminate against undocumented workers.  The landmark decision is the most favorable law in the world on the subject of the rights of international migrant workers.

In March 2002, the United States Supreme Court issued a controversial decision in a case called Hoffman Plastic Compound v. NLRB, that an undocumented immigrant worker illegally fired from his job for union organizing was not entitled to compensation for lost wages.  In May of that year, the government of Mexico requested an advisory opinion from the Interamerican Court, asking whether such practices violate international human rights laws.  Several countries in the region, not including the United States, filed briefs in the case.

The Court’s decision broadly holds that undocumented workers are entitled to the same labor rights, including wages owed, protection from discrimination, protection for health and safety on the job, and back pay, as are citizens and those working lawfully in a country.  The Court said that despite their irregular status,  “If undocumented workers are contracted to work, they immediately are entitled to the same rights as all workers…. This is of maximum importance, since one of the major problems that comes from lack of immigration status is that workers without work permits are hired in unfavorable conditions, compared to other workers.”

The Court specifically mentioned several workplace rights that it held must be guaranteed international migrant workers, regardless of their immigration status.  “In the case of migrant workers, there are certain rights that assume a fundamental importance and that nevertheless are frequently violated, including:  the prohibition against forced labor, the prohibition and abolition of child labor, special attentions for women who work, rights that correspond to association and union freedom, collective bargaining, a just salary for work performed, social security, administrative and judicial guarantees, a reasonable workday length and in adequate labor conditions (safety and hygiene), rest, and back pay.” 

The Court held that, as part of its principal obligation to interpret the Charter of the Organization of American States (OAS), it must integrate pertinent provisions of the American Declaration of the Rights and Duties of Man, and other international conventions on human rights in the American States. It further held that its consultative decision should be binding on all members of the Organization of American States, whether or not they have ratified certain of the Conventions that formed the basis of the opinion.  It based its decision on the non-discrimination and equal protection provisions of the OAS Charter, the American Declaration, the International Covenant on Civil and Political Rights, the American Convention on Human Rights and the Universal Declaration of Human Rights.  Each of these treaties is in some way binding on the United States.

Fifty labor, immigrants’ rights, and civil rights groups in the U.S. signed on to the brief, which was co-written by Beth Lyon of Villanova University Law School, Sarah Cleveland of the University of Texas, and Rebecca Smith of the National Employment Law Project.  A supplemental brief focusing on health and safety issues was filed in late June, after Ms. Lyon and Ms. Smith attended oral argument before the Court in Santiago de Chile.