Marginal Workers

J. Garcia Ruben

Description

Undocumented and authorized immigrant laborers, female workers, workers of color, guest workers, and unionized workers together compose an enormous and diverse part of the labor force in America. Labor and employment laws are supposed to protect employees from various workplace threats, such as poor wages, bad working conditions, and unfair dismissal. Yet as members of individual groups with minority status, the rights of many of these individuals are often dictated by other types of law, such as constitutional and immigration laws. Worse still, the groups who fall into these cracks in the legal system often do not have the political power necessary to change the laws for better protection.In Marginal Workers, Ruben J. Garcia demonstrates that when it comes to these marginal workers, the sum of the law is less than its parts, and, despite what appears to be a plethora of applicable statutes, marginal workers are frequently lacking in protection. To ameliorate the status of marginal workers, he argues for a new paradigm in worker protection, one based on human freedom and rights.

Sujets

• Sociologie, société et politique
• USA
• États-Unis
• Migration

Informations

• Publié par: NYU Press
• Date de parution: 01 janvier 2012
• Nombre de lectures: 0
• EAN13: 9780814738634
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

Marginal Workers

C I T I Z E N S H I P A N D M I G R AT I O N I N T H E A M E R I C A S General Editor: Ediberto Román

Tierra y Libertad: Land, Liberty, and Latino Housing Steven W. Bender

No Undocumented Cild Left Beind:Plyler v. Doeand te Education of Undocumented Scoolcildren Micael A. Olivas

Marginal Workers: How Legal Fault Lines Divide Workers and Leave hem witout Protection Ruben J. Garcia

Marginal Workers How Legal Fault Lines Divide Workers and Leave hem witout Protection

Ruben J. Garcia

a NEW YORK UNIVERSITY PRESS New York and London

NEW YORK UNIVERSITY PRESS New York and London www.nyupress.org

©  by New York University All rigts reserved

References to Internet websites (URLs) were accurate at te time of writing. Neiter te autor nor New York University Press is responsible for URLs tat may ave expired or canged since te manuscript was prepared.

Library of Congress Cataloging-in-Publication Data

Garcia, Ruben J. Marginal workers : ow legal fault lines divide workers and leave tem witout protection / Ruben J. Garcia. p. cm. Includes bibliograpical references and index. ISBN –––– (cl : alk. paper) ISBN –––– (ebook) ISBN –––– (ebook) . Discrimination in employment—Law and legislation—United States. . Minorities—Legal status, laws, etc.—United States. . Foreign workers— Legal status, laws, etc.—United States. . Labor unions—Law and legislation— United States. . Labor laws and legislation—United States. I. Title. KF.G  .'—dc 

New York University Press books are printed on acid-free paper, and teir binding materials are cosen for strengt and durability. We strive to use environmentally respon- sible suppliers and materials to te greatest extent possible in publising our books.

Manufactured in te United States of America          

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Contents

Preface: he Place of te Law in te Workplace

Acknowledgments

Introduction: Wo Are te Marginal Workers?

Framing Workers’ Rigts: he Legal and heoretical Underpinnings for te Protection of Marginal Workers

New Voices at Work: Unionized Workers at te Intersection of Race and Gender

Across te Borders: How Antidiscrimination Law Fails Noncitizens and Oter Marginal Workers

Labor as Property: Guestworkers at te Margins of Domestic Legal Systems

A Global Understanding of Worker Protection

Notes

Index

About te Autor

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Preface

he Place of te Law in te Workplace

n te late s, I worked as a union-side labor lawyer in Soutern I California. It was work I torougly enjoyed for a few years after law scool. I was able to work wit clients tat I respected wo were trying to win a modicum of dignity in te workplace. I wanted to be part of te labor movement in some way, but never could see myself as an organizer or rabble-rouser. But I felt tat I could use te law as a way to improve working conditions and empower people. As wit most wo aspire to be lawyers for a cause (or “cause lawyers” as Austin Sarat and Stuart Sceingold ave dubbed tem), I wanted to  use te law to furter long-lasting social cange. And as wit oter cause lawyers, after several cases I began to wonder exactly wat kind of impact I was aving on te larger cause of worker rigts. My cases were te typical diet of a labor side lawyer—workers denied te rigt to organize, unionized workers wit arbitration cases, and te vindication of statutory rigts. hese cases followed a familiar pattern—employer misconduct, judicial reprobation, and ten an inability to collect anyting because of employer insolvency or intransigence. Like oter labor lawyers before me,  I started searcing for te larger meaning of wat I was doing. I was for- tunate to work for a firm tat prized sopisticated, etical advocacy and a client-centered approac, but I wanted to try to ave a different kind of impact. I ad always aspired to an academic career, and te time seemed rigt to make a move to teacing. After a few years of cases tat failed to cange most employers’ ingrained resistance to workers’ rigts, I did a researc fellowsip at te University of Wisconsin law scool to probe deeper into te relationsip between women, people of color, and teir unions. he result was a study called “New Voices at Work: Race and Gender Identity

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Preface

 Caucuses in te U.S. Labor Movement.” In tat study, I found tat work- ers of color and women in U.S. labor unions worked to assert temselves in identity groups, even in te sadow of te union’s exclusive role as col- lective bargaining representative. his researc is discussed in capter . here, te law was not an insurmountable barrier to people of color and women finding protection under a union contract. It also sowed tat statutory labor law did not solely determine te degrees of freedom avail- able to workers to callenge existing majoritarian structures. My time as a Hastie Fellow at te University of Wisconsin cemented te idea tat te “law in action” could be very different from te “law on te books,” mean- ing tat te realities of te law frequently do not matc te ideals. Even wen I was a practicing lawyer, I represented a number of indi- vidual workers in statutory claims against teir employers. hese claims were often as part of union organizing drives, but tey so often ended badly for te workers—wit employers quasing union organizing drives and firing workers, and ten leaving workers wit unenforceable statu- tory claims. Employers often would go bankrupt, leaving workers unable to collect teir full paycecks or benefit from statutorily provided reme- dies. On paper, te statutes were tere to protect workers, but tey failed to live up to teir promise. At te same time, I participated in local legislative struggles tat were part of a broader movement to improve te lives of workers. In te mid- s, I worked on te legal teories beind te Los Angeles Living Wage Ordinance. hese ordinances generally require businesses tat contract wit cities to pay at least a specified wage above te California minimum wage, and to provide an even iger wage if te employer did not provide ealt benefits. his campaign was successfully carried out by dedicated community activists as it was in oter cities, suc as Pasadena and Santa  Monica, were I also provided pro bono legal assistance. hese campaigns were important in laying te groundwork for pro- gressive cange in several cities, but tey ad limited impact on teir own terms. First, tese laws generally only apply to tose employers tat contract wit te city tat passed te ordinance. he Santa Monica ordi- nance was unique in tat it applied to a “Coastal Zone” were most of te tourist attractions and restaurants are located. his made te law more broadly applicable tan te ones in L.A. and Pasadena. As suc, te law was also more controversial. It was callenged in te courts and ultimately repealed by voters troug Santa Monica’s initiative process. Despite all of tese years, it seems, minimum wage legislation remains

Preface

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a contested concept. here are ongoing debates about te proper level of te wages and even weter a minimum wage is necessary. his book does not aim to resolve tese debates, but I ope tat some of te insigts contained erein contribute to te dialogue. his is not solely a book about te unrequited promise of law. It is also a book about ow te content of law serves to perpetuate its ineffective- ness. I saw tis firstand wen a supervisor at a small bakery in Soutern California sougt elp from my firm after e was fired for organizing a union. he only problem was tat te potential client was a supervisor— and supervisors are not covered by te statute. his particular supervi- sor was simply trying to encourage te employees to exercise teir rigts. Because te client was a supervisor, te employer could be candid and direct in te termination letter about te reason for te firing—assisting te employees in organizing a union—witout any fear of legal repercus- sions. his sows a basic willingness to flout te rigt to organize, since te statute does not make te conduct illegal. he employer’s actions also communicated to te rest of te workforce tat tey sould not tink about unionizing. here will always be tose wo tink tat minimum wage and benefits protections are necessary and desirable. Indeed, te minimum wage is an  important anti-poverty tool. he economic debates about te minimum wage will continue. But tis book will address concepts tat go beyond economic debate. First, no person sould work in a condition of invol- untary servitude. Anoter foundational principle is tat discrimination on arbitrary grounds sould not be tolerated—te only question usually is wat constitutes unlawful discrimination. Finally, most people sould ave te rigt to associate for teir own benefit and protection, altoug like free speec it is subject to limitations. Wile te scope of tese rigts may be debated, teir existence as a baseline sould not be in serious dis- pute. he problem is tat workers’ rigts are not seen as fundamental in our culture today. In fact, workers’ rigts principles are found in te United States Con- stitution and many international uman rigts documents. Most of te Constitution applies only to governmental action, but te hirteent Amendment applies to bot private and public action and proibits “involuntary servitude” anywere in te United States. Discrimination by te government is proibited by te equal protection clause of te Fourteent Amendment. Many of te civil rigts era protections, wile ostensibly enacted pursuant to te Commerce Clause, draw muc from