Immigration Law

Immigrants in the Workplace Professor Jayesh Rathod

LAW 923-001 Room 461

Spring 2009 (202) 274-4459

Mondays 3:00 – 4:50pm jrathod@wcl.american.edu

Office Hours: Tues. 3:30-5:30pm





COURSE DESCRIPTION



This course is designed to provide a comprehensive background in labor and employment law, as

it applies to immigrant workers in the United States. The development of this law, and the exclusion of

categories of workers from certain rights and remedies, will be examined in the context of historical,

political, and, of course, legal considerations. Particular attention will be given to the intersections

between labor/employment law and immigration law.



The course will focus on rights and remedies emanating from the following labor and

employment statutes: the National Labor Relations Act and corresponding state labor statutes; the Fair

Labor Standards Act; Title VII of the Civil Rights Act (focusing specifically on national origin

discrimination and English-only policies); the Occupational Safety and Health Act; and state workers

compensation statutes. In discussing these statutes, the course will combine the “textbook” instruction of

substantive labor and employment law with a discussion of real-life, strategic choices to be made in

pursuing workplace rights for immigrants. Although the primary focus of the class is U.S. law, periodic

reference will be made to international law.





COURSE MATERIALS & BLACKBOARD



 Player, Shoben, and Schroeder, Selected Employment Law Statutes (2006-2007 ed.)

 Supplemental Readings (to be posted on Blackboard)



In an effort to “go green,” all supplemental course readings will be posted on Blackboard. Hard

copies will not be distributed. I will also moderate a discussion of student questions on Blackboard. If

you have any questions about using this program, or need to get registered, please contact Computer

Services at comptech@wcl.american.edu .





CLASS FORMAT



Class attendance and participation are expected of all students, and all students are expected to be

prepared for each class. This course will work best if our examination of the materials we will study

includes a considerable amount of lively and thoughtful class discussion, in which a broad cross-section

of the class takes part, rather than the same few each week. To encourage the conditions for such class

discussions, one-half of the class will be “on call” each class. You are also encouraged to voluntarily

participate on those days when you are not on call. When you are on call, I will expect you to be prepared

to discuss and explain the cases and articles contained in the reading assignment for class.





CLASS SCHEDULE



Class will meet from 3:00 – 4:50 p.m. on Mondays. Class will start promptly at 3:00 p.m.

Immigrants in the Workplace

Professor Rathod

Spring 2009





SPANISH LANGUAGE DISCUSSION



All students are invited to an optional discussion of the course materials in Spanish, to be

conducted from 5:00 – 5:50pm, after the regular class session. During this hour, we will apply the

content of the course in the following manner: (1) discussion of, and practice in articulating substantive

labor and employment law, and judicial procedure, to Spanish speaking clients; (2) discussion of, and

practice in counseling Spanish-speaking clients with work-related legal concerns; (3) review of Spanish

language vocabulary needed to communicate with clients about labor and employment law; and (4)

ongoing discussion, in Spanish, of issues and questions raised by the assigned course readings.



Students who elect to participate in this session may be eligible for an additional course credit.

Details will be provided during the first class session.





OFFICE HOURS



My regular office hours are Tuesdays from 3:30-5:30 p.m. If you are unable to meet then, I

would be pleased to meet with you at another, mutually agreeable time. Please speak with me after class,

or contact me by email, to schedule an appointment.





GRADING



Grading will be based primarily on an open-book, take-home exam at the end of the semester.

Your performance on this exam will account for 70 percent of your grade. Class participation (including

preparation and attendance) will account for 15 percent of your grade. The final 15 percent of your grade

will be based upon the successful completion an Immigrant Employment Rights Site Visit. Further

information on this assignment is attached at the end of the syllabus.









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Immigrants in the Workplace

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SYLLABUS



Note that assignments may be adjusted over the course of the semester.



I. An Introduction to Low-Wage Immigrant Workers in the U.S.



CLASS 1 Monday, January 12



A. Course Overview

B. Defining “Immigrant Workers”

C. History of Immigrant Workers in the U.S.

D. Immigrant Worker Demographics

E. Immigrant Workers & The Economy

F. Intersection of Immigration and Labor/Employment Law



Assigned Readings:



 National Immigration Law Center, OVERVIEW OF KEY ISSUES FACING LOW-WAGE IMMIGRANT

WORKERS

 Randy Capps, U.S. Immigrant Workers and Families: Demographics, Labor Market

Participation, and Children’s Education, 14 Va. J. Soc. Pol’y & L. 170 (2007) (pages 170-80,

185-93 only)

 Jason deParle, A Good Provider is One Who Leaves, N.Y. TIMES, April 22, 2007

 Terry Repak, WAITING ON WASHINGTON: CENTRAL AMERICAN WORKERS IN THE NATION'S

CAPITAL (excerpt)

 Statutory Supplement, pp. 368-70 (8 U.S.C. § 1324a)





NO CLASS Monday, January 19 (MLK Holiday)





II. Labor Law: The National Labor Relations Act





CLASS 2 Monday, January 26



A. Immigrants and Organized Labor: Friend or Foe?

B. Overview of NLRA

C. Covered “Employees”



Assigned Readings:



 Leon Fink, THE MAYA OF MORGANTON: WORK AND COMMUNITY IN THE NUEVO NEW SOUTH

 Sure-Tan v. NLRB, 467 U.S. 883 (1984)

 Agri Processor Co. v. NLRB, 514 F.3d 1 (D.C. Cir. 2008)

 Statutory Supplement, pp. 413-17 (29 U.S.C. §§ 156, 157, 158(a)-(c))









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Immigrants in the Workplace

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Spring 2009



CLASS 3 Monday, February 2



A. Exclusions

B. Remedies Under the NLRA



Assigned Readings:



 Marlyn Edid, FARM LABOR ORGANIZING: TRENDS & PROSPECTS

 Daniel Rothenberg, WITH THESE HANDS: THE HIDDEN WORLD OF MIGRANT FARMWORKERS

TODAY

 Vlasic Farms, Inc. v. PLRB, 565 Pa. 555 (2001)

 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002)

 Tuv Taam v. Oscar Palacios, 340 NLRB 1 (2003)

 Statutory Supplement, pp. 409-11 (29 U.S.C. § 152)





CLASS 4 Monday, February 9



A. Retaliation Protections/Reverification

B. International Human Rights Rulings



Assigned Readings:



 NLRB General Counsel Memo 02-06

 The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the

Confederation of Mexican Workers (CTM), ILO Case No. 2227 (November 2003)

 Inter-American Court of Human Rights, Legal Condition and Rights of Undocumented Migrant

Workers, Consultative Opinion OC-18/03 (September 17, 2003)





III. Wage and Law: The Fair Labor Standards Act





CLASS 5 Monday, February 16



A. FLSA Origins & Basics

B. Minimum Wage, Overtime Protections, & Deductions



Assigned Readings:



 IBP, Inc. v. Alvarez, 546 U.S. 21, 31 (2005)

 Vega ex rel. Trevino v. Gasper, 36 F.3d 417, 425 (5th Cir. 1994)

 Arriaga v. Florida Pacific Farms, 305 F.3d 1228 (11th Cir. 2002)

 Statutory Supplement, pp. 263-277 (29 U.S.C. §§ 206, 207)









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Immigrants in the Workplace

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CLASS 6 Monday, February 23



A. Employers & Employees: Coverage

B. Employers & Employees: Exclusions



Assigned Readings:



 Luna v. Del Monte Fresh Produce (Southeast), Inc., 2008 U.S. Dist. LEXIS 21636 (N.D. Ga.

Mar. 18, 2008)

 Patel v. Quality Inn South, 846 F.2d 700, 702 (11th Cir. 1988)

 Nizamuddowlah v. Bengal Cabaret, Inc., 69 A.D.2d 875, 876 (N.Y. App. Div. 2d Dep’t 1979)

 U.S. Department of Labor Wage and Hour Division, Fact Sheet #48, “Application of U.S. Labor

Laws to Immigrant Workers: Effect of Hoffman Plastics decision on laws enforced by the Wage

and Hour Division,” (July 12, 2002)

 Statutory Supplement, pp. 280-292 (29 U.S.C. § 213)





CLASS 7 Monday, March 2



A. Burdens of Proof & Remedies

B. Retaliation Protections

C. Debt Peonage/Slavery/Trafficking



Assigned Readings:



 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)

 Zeng Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191, 193 (S.D.N.Y. 2002)

 Singh v. Jutla, 214 F. Supp. 2d 1056, 1060 (N.D. Cal. 2002)

 Renteria, et al. v. Italia Foods, Inc., 2003 U.S. Dist. LEXIS 14689 (N.D. Ill., Aug. 21, 2003)

 Doe v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000)

 Topo v. Dhir, 210 F.R.D. 76 (S.D.N.Y. 2002)

 Statutory Supplement, pp. 297-301 (29 U.S.C. §§ 215, 216)





NO CLASS Monday, March 9 (Spring Break)





IV. Anti-Discrimination Statutes





CLASS 8 Monday, March 16



A. Title VII: History and Overview

B. Title VII: Coverage & Exclusions

C. National Origin Discrimination/English-Only Policies

D. Remedies and Retaliation







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Assigned Readings:



 Espinoza v. Farah Mfg. Co., 414 U.S. 86, 89 (1973)

 St. Francis College v. Al-Khazraji, 481 U.S. 604, 607 (1987) (42 U.S.C. § 1981)

 Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004)

 EEOC, Recission of Enforcement Guidance on Remedies Available to Undocumented Workers

Under Federal Employment Discrimination Laws (June 27, 2002)

 Egbuna v. Time-Life Libraries, 153 F.3d 184 (4th Cir. 1998)

 EEOC v. Harris Farms Inc., 274 Fed. Appx. 511 (9th Cir. 2008)

 Statutory Supplement, pp. 37-39, 40-42, 45-46 (42 U.S.C. §§ 2000e, 2000e-2(a)-(g), 2000e-3)





CLASS 9 Monday, March 23



A. Age Discrimination in Employment Act (ADEA)

B. Americans with Disabilities Act (ADA)

C. State Law Analogs

D. Basics of 8 U.S.C. § 1324b



Assigned Readings:



 Reyes-Gaona v. N.C. Growers Ass’n, 250 F.3d 861 (4th Cir. 2001)

 Lopez v. Superflex, Ltd., 2002 U.S. Dist. LEXIS 15538 (S.D.N.Y. Aug. 21, 2002)

 Crespo v. Evergo Corp., N.J. Super. Ct. App. Div., No. A-3687-02T5 (February 9, 2004)

 Form I-9 Handbook for Employers

 Carbajal-Ramirez v. Bland Farms, No. 6:01-CV-056 (S.D. Ga. 2001)

 Robinson Fruit Ranch v. United States, 147 F.3d 798, 802 (9th Cir. 1998)

 Statutory Supplement, pp. 2-4, 23-24, 370-6 (29 U.S.C.§623(a)-(f), 42 U.S.C.§ 12112(a)-(b), 8

U.S.C. § 1324b)





V. Occupational Safety & Health/Workers’ Compensation





CLASS 10 Monday, March 30



A. Overview of Health & Safety Issues

B. OSHA Basics

C. AWPA Basics



Assigned Readings:









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Immigrants in the Workplace

Professor Rathod

Spring 2009



 Jimmy Breslin, THE SHORT, SWEET DREAM OF EDUARDO GUTIERREZ

 Bureau of Labor Statistics, Census of Fatal Occupational Injuries, 1992-2007

 Jayesh M. Rathod, Immigrant Labor and the Occupational Safety and Health Regime: A New

Vision for Workplace Regulation, NYU Rev. L. & Soc. Change (forthcoming 2009)

 U.S. Ends Job “Safety” Immigration Raids, Associated Press Online (March 30, 2006)

 Charles v. Burton, 169 F.3d 1322, 1329 (11th Cir. 1999)

 Martinez v. Mecca Farms, 213 F.R.D. 601 (S.D. Fla. 2002)

 Statutory Supplement, pp. 452-453, 455, 456, 462-63, 465-66 (29 U.S.C.§§ 651, 654, 655(a),

657(a), 658).





CLASS 11 Monday, April 6



A. Workers’ Compensation

B. Actions in Tort



Assigned Readings:

 Ruiz v. Belk Masonry Co., 559 S.E.2d 249 (N.C. App. 2002)

 WYO. STAT. § 27-14-102

 Balbuena, et al. v. IDR Realty LLC, et al., 2006 N.Y. LEXIS 200; 2006 NY Slip Op.124 (Feb. 21,

2006)

 Tyson Foods, Inc. v. Guzman, 116 S.W. 3d. 233 (Tex. Ct. App. 2003)

 Gomez v. Western Farm Services, (Cal. Super. Ct. Feb. 6, 2004)

 Cherokee Indus. v. Alvarez, 2004 OK CIV. APP. 15, 12 (Okla. Ct. App. 2003)

 Granados v. Windson Dev. Corp., 257 Va. 103 (Va. 1999); VA. CODE ANN. § 65.2-101





VI. Contract Claims





CLASS 12 Monday, April 13



A. Actions in Contract and Quasi-Contract

B. Special Case of H-2A Workers

C. Special Case of Day Laborers



Assigned Readings:



 Morales-Arcadio v. Shannon Produce Farms, Inc., 2007 U.S. Dist. LEXIS 51950 (S.D. Ga. July

18, 2007)

 Hernandez v. Two Bros. Farm, LLC, 2008 U.S. Dist. LEXIS 75966 (S.D. Fla. Sept. 26, 2008)

 Rebecca Smith, An Honest Day’s Work: Day Labor Advocacy in the United States, 38

Clearinghouse Review Journal of Poverty Law and Policy 355 (Sept.-Oct. 2004)

 Ulloa v. Al’s All Tree Serv., 2 Misc. 3d 262, 263 (N.Y. Dist. Ct. 2003)









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Immigrants in the Workplace

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Spring 2009



VII. Immigration Reform & The Workplace





CLASS 13 Monday, April 20



A. Employment Verification Systems

B. SSA No-Match

C. Workplace Raids

D. State Initiatives



Assigned Readings:



 ICE Revised Operations Instruction 287.3a (1996)

 ICE – DOL, Memorandum of Understanding (November 23, 1998)

 Arizona: A.R.S. §§ 23-211 to 23-214; Ariz. Contrs. Ass’n, Inc. v. Candelaria, 534 F. Supp. 2d

1036 (D. Ariz. 2008)

 Georgia: SB 529; Georgia Department of Labor Implementing Regulations; Georgia Immigration

Law Expanding to More Employers, ATLANTA BUSINESS CHRONICLE (June 13, 2008)





VIII. Emerging Issues





CLASS 14 Monday, April 27





A. Civil RICO/SLAPP Suits

B. Sarbanes Oxley Whistleblower Protections

C. International Law Trends



Assigned Readings:



 Williams v. Mohawk Indus., 411 F.3d 1252 (11th Cir. 2005)

 Williams v. Mohawk Indus., 465 F.3d 1277, 1281 (11th Cir. 2006)

 Reyna v. ConAgra Foods, Inc., 506 F. Supp. 2d 1363, 1383 (M.D. Ga. 2007)





EXAM REVIEW To Be Scheduled









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Immigrants in the Workplace

Professor Rathod

Spring 2009





INFORMATION ON IMMIGRANT EMPLOYMENT RIGHTS SITE VISIT



As noted in the syllabus, all students enrolled in the course will be required to participate in an

Immigrant Employment Rights Site Visit. The purpose of the site visit is to gain first-hand exposure to

the work of immigrant worker advocates in the D.C. metropolitan area, and to engage in dialogue with

local immigrants about their rights in the workplace.



These site visits will take place at: the Prince George’s County Worker Center in Langley Park,

Maryland (operated by CASA of Maryland, Inc (http://www.casademaryland.org)); and in Annandale,

VA (with the Legal Aid Justice Center for Farm and Immigrant Workers (http://www.justice4all.org)).

During the site visit, you will make a brief presentation to workers (in English or Spanish) about their

workplace rights. You will also have the opportunity to observe the legal and organizing work of the staff

members you will be accompanying. The site visits will take place on a weekday morning, from

approximately 8:30AM to 11:30AM. The exact date(s) for the site visits will be announced during

Class 2. Additional details and instructions will also be provided at that time.



Following the completion of the site visit, you should write a brief (2-3 page) reflection paper

about your experience. In your paper, you should reflect on how your experience either comported with

or differed from your expectations, and anything else that you found interesting or noteworthy. These

papers are due by 5:00PM on Monday, April 13.









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