By Paul Scrom, Jr.
At this year’s Hofstra Labor & Employment Law Journal Symposium, Professor Jennifer Gordon of Fordham University School of Law delivered the keynote speech. Her speech was directed at the cross conflicts between labor/employment law and immigration law, specifically the difficulty in enforcing workplace protections on immigrant workers due to practical and ethical problems facing both employers and employees. She argued that the immigration law structure prevents access of rights to immigrants and encourages employers to use migration programs to undercut employment protections rather than embrace them. For example, the guest worker program pushed by President Bush in 2004, ties work visas to a particular job or employer, so if that worker is let go, they must go back home and are usually black listed from the program. This program encourages employers to undercut immigrant wages, knowing that this job is their only option as a guest worker. The solution for Professor Gordon is to restructure the system, switching the focus from giving incentives that undermine employment protections to incentives encouraging them.
In her speech, Professor Gordon gave three options in carrying out this restructuring solution in the United States, and generally, worldwide. These three options have been implemented in various places around the world but have neither become standard, nor widespread across the globe. First, bilateral agreements must be transformed substantively. There must be a push for origin countries to include rights provisions in bilateral labor agreements with destination countries, and if not, origin countries must regulate rights through their labor recruitment process.
Second, and the option Professor Gordon seems to favor most, is to take the example of the European Union and allow full freedom of movement and migration. The most important aspect of full mobility is that it allows for labor market adjustments. The fluidity allows workers not to be trapped in low wage jobs and eliminates fears of having no other options if fired for complaining about workplace violations by employers. Professor Gordon explained how the United States fears full mobility would increase the unemployment rate in the U.S. One answer to this worry is that most migrant workers hold low wage jobs. Also, this same worry existed for many European nations, but has not come to exist in the E.U. She claims there is no assumption of permanent stay of migrants, and in fact, migration is highly circular in which only half of migrants stay in destination countries. The U.S. seems reluctant in giving way to freedom of mobility within the region of the Americas. In fact, the U.S. has only signed, and not ratified, the American Convention on Human Rights which includes, in Article 22, the right to freedom of movement and residence; the closest legal analogy to the E.U’s freedom of mobility. The regional system can be an effective solution, but seems difficult to implement practically in the face of U.S. law and practice.
Lastly, Professor Gordon stresses the example of Asian states, where unions from different countries collaborate and make agreements with each other to ensure representation and protection of rights of migrant workers. Professor Gordon stresses that global union confederations have not had much practical impact. Alternatively, partnerships of unions on the ground, rather than globally, have been more effective. The best approach may be a combination of the two: partnerships and agreements between unions on the ground regulated by an international organization, specifically the International Labor Organization (ILO).
The ILO already has in place norms embedded in its Constitution and eight staple conventions. These conventions are split into four main categories, consisting of two conventions in each: freedom of association and collective bargaining, elimination of forced and compulsory labor, elimination of discrimination in respect of employment and occupation (the main concern here), and abolition of child labor. There are 183 countries part of the ILO and the amount of those countries which ratified the eight key treaties range from 150 to 173 countries accordingly.
This substantial agreement on rights sets a framework in which the ILO can enforce these rights through agreements of unions on the ground in different countries. Different trades, and their leading unions in respective countries, can use the ILO as a way of communicating and regulating union agreements on the ground. The conflict between immigration law and labor law can be resolved through the ILO directing and guiding unions to agree to the rights system already in place under the organization. Although most countries agree to these rights, workers who migrate, either coming from or going to a country that doesn’t, can still have these rights ensured. Practically, the ILO can oversee and facilitate, through local union participation, lateral agreements between employers and employees that include these rights. This approach will overcome the practical limitations of establishing that first communication between unions on the ground in providing a forum where these local unions can come together and promote the framework of worker protection. This will center the structure on workers’ rights and provide unions a broader, stronger means of protecting the workers they represent.
Professor Gordon presented some key concepts on reforming the structure that governs the relationship between immigration law and workplace protections. The participation of the ILO can help further, what I feel is her most promising proposition: to use union agreements on the ground in order to enforce migrant worker protections. Unfortunately, in reality an overhaul of the structure is and will be difficult. But, being the founder of Workplace Project in New York, it is hard to believe she will give up trying, leaving much hope for future advocates.
 Michael Fletcher and Darryl Fears, Bush Pushes Guest-Worker Program, Washington Post, Nov. 29, 2005, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/11/28/AR2005112800067.html.
 Organization of American States, American Convention on Human Rights: General Information of the Treaty, http://www.oas.org/juridico/english/sigs/b-32.html (last visited Nov. 24, 2010).
 American Convention on Human Rights, art. 22 (1), Nov. 22, 1969.
 Janice R. Ballace, The Future of Employee Representation in America: Enabling Freedom of Association in the Workplace in Changing Times Through Statutory Reform, 5 U. PA. J. LAB. & EMP. L. 1, 29 (2002).
 International Labour Organisation, Ratifications, http://www.ilo.org/global/About_the_ILO/lang–en/index.htm (last visited Nov. 24, 2010).