[Excerpt] Recently, the issues of immigration and immigration policy have garnered intense debate in the United States. Much of what Americans have discussed relates to border security, sanctions against employers who knowingly hire undocumented workers, and temporary and permanent paths to legalization for undocumented workers. This debate often overshadows a meaningful discussion about the future of workplace rights for undocumented workers who, despite their undocumented status, currently work in the United States and at times suffer labor and employment law violations in their workplaces. Unfortunately, the national immigration debate has not incorporated this discussion. Moreover, the current proposed federal immigration bills neither address nor clarify what effect they will have on the workplace rights of undocumented workers.
Similar to Professor Cunningham-Parmeter’s article, this article focuses on one aspect of the new legal landscape for undocumented workers in the United States since the U.S. Supreme Court’s 2002 decision in Hoffman Plastic Compounds, Inc. v. NLRB. One central element of this new legal landscape is ongoing confusion about what effect, if any, immigration policy has on federal and state labor and employment law in the United States. Below, I take a first step toward clarifying the extent to which immigration policy affects the rights of states to extend the full protection of their state labor and employment laws to undocumented workers. Specifically, I address the following unresolved question currently before many lower courts: When, if ever, does federal immigration law preempt certain state labor and employment law remedies? First, I briefly describe why this question has emerged and has become important in U.S. courts. Next, I describe recent U.S. Supreme Court Supremacy Clause jurisprudence indicating that some lower courts’ answers to the preemption question described above threaten to stretch the Supremacy Clause beyond its constitutionally-intended boundaries.