Immigration and employment are closely linked subjects. After all, the 1986 Immigration Reform and Control Act criminalized an activity that we don’t normally think of as illegal – that is, the activity of work itself (when that work is performed without proper documentation). It’s been fascinating to follow the debate and to see the strange political bedfellows involved; congress is going to continue considering potential compromises. On May 1 these issues took center stage on the “Day Without an Immigrant” protests and boycotts (some of which continued past that day). For reports, see this CNN story and recent posts at ImmigrationProf here.
According to the print Wall Street Journal, however, the May 1 immigration rallies were somewhat constrained. If all of the 11 million workers who are working without authorization walked out on their jobs, that would cause serious harm to the national economy. The article raised the idea that the “strike” was muted in part because workers were afraid that they would be fired or otherwise retaliated against if they chose to take part in protests. The New York Times had earlier reported on retaliation against workers who had attended pro-immigration rallies.
Professor Paul Secunda over at WorkplaceProf offers the following intriguing analysis of retaliation for these protests building on a labor law theory:
From a legal standpoint, one of the most overlooked aspects of the National Labor Relations Act (NLRA) is that it not only protects unionized workers, and those seeking unionization, in their ability to engage in concerted activity for mutual aid and protection in the workplace, but also protects non-unionized workers, like many of these rallying immigrant workers, in their ability to engage in the same activity.
Consequently, non-unionized workers are also protected against adverse employment action by their employers to the extent that the rallies are considered a type of concerted activity for mutual aid and protection, which is directly related to concerns in the workplace. To the extent that employers nevertheless take adverse actions based on participating in these rallies, the impacted employees may be able to seek reinstatement and backpay through filing unfair labor practice claims with the NLRB.
Paul’s analysis certainly would lead to a progressive pro-speech / pro-expression outcome. But at the same time, walking out on work for this type of protest isn’t prompted by anything that the particular employer did. Attendance is a basic job requirement, and the employees could express themselves during non-work hours. Finally, if it is undocumented workers who are involved in the protest, the decision in Hoffman Plastics means that even if the workers were able to show that their rights had been violated, they wouldn’t be able to receive the backpay.
If all we’re left with is an employment analysis, then the remedy is even more constrained, since most workers are at will. I suppose there may be some kind of Title VII protection (for national origin discrimination) if all of the retaliated-against protestors are being treated more harshly than a worker of a different ethnic group who is absent for a day.
Interestingly, in another part of his post, Paul claims that most employers probably will not retaliate for self-interested reasons:
Finally, and perhaps the best reason for employers not to take any action against employees participating in immigration rallies is because, from a practical standpoint, it does not serve their interests. After all, many of the same companies and industries that are suffering the most from absent workers because of these rallies are the same companies which have the most to gain through the continuation of the current immigration state of affairs. It would thus seem in these employers’ best interests to encourage these workers to demonstrate for more flexible immigration laws and not to punish them for doing so
I suppose that depends on which employers, or how employer “economic interests” is defined. If the laws are changed to allow illegal aliens to regularize their status, that means that the “threat of calling the INS” no longer will have any power over undocumented workers. And these undocumented workers may then choose to organize or push for other rights – rights that they haven’t felt comfortable asserting because of the fear of deportation. And the employers who are currently hiring undocumented workers don’t want that.
Now, if the government shifted the focus from deporting immigrants themselves, and instead cracked down on employers (who perhaps have brought additional attention to themselves by firing employees who are attending immigration rallies), I suspect that the burden of the law would fall much differently. We would see a whole different set of incentives come into play, and that might lead to meaningful immigration reform.