D. Carolina Nuñez, 𝘍𝘳𝘢𝘤𝘵𝘶𝘳𝘦𝘥 𝘔𝘦𝘮𝘣𝘦𝘳𝘴𝘩𝘪𝘱: 𝘋𝘦𝘤𝘰𝘯𝘴𝘵𝘳𝘶𝘤𝘵𝘪𝘯𝘨 𝘛𝘦𝘳𝘳𝘪𝘵𝘰𝘳𝘪𝘢𝘭𝘪𝘵𝘺 𝘵𝘰 𝘚𝘦𝘤𝘶𝘳𝘦 𝘙𝘪𝘨𝘩𝘵𝘴 𝘢𝘯𝘥 𝘙𝘦𝘮𝘦𝘥𝘪𝘦𝘴 𝘧𝘰𝘳 𝘵𝘩𝘦 𝘜𝘯𝘥𝘰𝘤𝘶𝘮𝘦𝘯𝘵𝘦𝘥 𝘞𝘰𝘳𝘬𝘦𝘳, 2010 Wɪs. L. Rᴇᴠ. 817.
immigration, illegal alien, undocumented immigrant, labor, employment, undocumented worker, unauthorized worker, Hoffman, backpay, territoriality, post-territoriality
Relied upon but unwelcome, among us but uninvited, undocumented workers in the United States – now numbering over 8 million – labor on the border of inclusion and exclusion, between a status-based conception of membership and a territorial approach to membership. Although mere presence in the U.S. secures undocumented workers many of the same labor protections afforded to authorized workers, undocumented status often forecloses certain remedies otherwise available for employer breaches of those protections. Many commentators have criticized this effective status-based denial of rights to undocumented workers as inimical to the goals underlying labor and immigration law. While this Article echoes some of those sentiments, its purpose is broader.
This Article bases its critique of the slow encroachment of a status-based conception of membership into the employment sphere on its failure to recognize fundamental indicators of membership, including an individual’s ties to the surrounding community, that have historically shaped notions of membership. However, this Article does not advocate the use of the historically dominant territorial model, which distributes rights based on mere territorial presence. It suggests that territoriality, applied in an increasingly globalized world in which relationships and obligations are not dictated by physical borders, can no longer adequately answer questions of membership. Rather, this Article offers a more principled, nuanced approach – one that arguably is already emerging outside the employment context – derived from territoriality’s underlying rationales but stripped of that approach’s fixation on geography, to secure the rights of undocumented workers.
2010 Wis. L. Rev.
Wisconsin Law Review