Employment Authorization, Alienage Discriminiation and Executive Authority

Source: Leticia M. Saucedo, Berkeley Journal of Employment & Labor Law, Volume 38 Issue 2, 2017

Employees, regardless of immigration status, have rights and protections that come from employment and labor laws. This proposition, while established doctrinally, continues to be highly contested and questioned, in part because it seems to contradict congressional intent to control the flow of undocumented labor in the workplace. As history suggests, however, Congress intended to make employers accountable for pulling undocumented workers into the labor market, and the protections in employment and labor laws were meant to continue to apply to all who are eligible for the status of employee. This Article calls for a doctrinal shift in employment law that removes considerations of immigration status in enforcement. Not only does keeping immigration status out of issues of employment protection benefit all workers, but the separation of immigration status from employment enforcement adheres to long-held principles of equal protection based on alienage, and to congressional intent to hold employers accountable for exploitative treatment of the most vulnerable workers. The Obama administration’s attempt to provide employment authorization to undocumented individuals can be viewed as an attempt to use its authority under the immigration statute to keep faith with these alienage anti-discrimination principles and to ensure equal treatment by providing legal status in the workplace. As the Trump administration uses this authority in its immigration policy, it should heed the same anti-discrimination principles….