Having spent the bulk of my 39-year career with the U.S. Department of Labor enforcing federal worker protection statutes in the six New England states, I was fortunate twenty years ago to have the chance to spend about six months with the department’s International Labor Affairs Bureau (ILAB) based in Washington, D.C. I served as Acting Project Manager for Eastern Europe, and was tasked with overseeing worker protection projects DOL was supporting in Poland and Ukraine. This was the beginning of a global labor rights journey that most recently includes my article in the Global Labour Rights Reporter about protecting migrant workers that I summarize and put into context below.
In Poland, ILAB’s projects included a government program to provide a “rapid response” to mass layoffs, and AIDS education in the workplace. Projects in Ukraine focused on reform of its Soviet-era labor law, and improved ventilation in the country’s methane-rich (and thus highly explosive) coal mines in the Donbas region. I had the unforgettable and quite sobering opportunity to observe operations in five of the region’s largest mines, each a half-mile underground, and to spend time in Donetsk and Luhansk, more recently the sites of fierce fighting and devastation resulting from Russia’s hunger for annexation.
My time at ILAB whetted my appetite for advancing worker protection not only within the U.S., but also beyond our borders. After leaving the Labor Department in 2018, I have been able to support efforts – anchored by the International Labor Organization in Geneva -- to strategically enforce worker protection laws in developing countries. I have also affiliated with the International Lawyers Assisting Workers (ILAW) Network, a project of the AFL-CIO’s Solidarity Center.
A brief side note: My first encounter with the Solidarity Center was a lunchtime meeting with its Eastern Europe staffer, in Kyiv in 2003, during my stint as ILAB acting project manager. He urged me to report to the U.S. Embassy on the violent suppression -- by the Kuchma regime in power in Ukraine at the time -- of the progressive union movement in Ukraine. On my visit to the Embassy a few days later, I did so report, to then-Deputy Chief of Mission Marie Yovanovitch. Yovanovitch later became Ambassador and famously and courageously testified at the congressional impeachment hearings related to former President Donald Trump’s notorious “I need you to do me a favor” phone call with Ukraine’s President Volodymyr Zelensky.
Back to the ILAW Network: As described on its website, the ILAW Network’s core mission is “to bring together legal practitioners and scholars in an exchange of ideas and information in order to best represent the rights and interests of workers and their organizations wherever they may be.” The Network recognizes the common issues that workers face globally – fissured employment relationships, wage theft, employment discrimination, unsafe workplaces, gender-based harassment and violence, and anti-union animus, to name a few. It aspires to leverage the skills and experience of lawyers across multiple jurisdictions in support of advocacy on behalf of workers, wherever situated.
The Network primarily facilitates idea and information exchange through its online library and forums. It held its inaugural global conference in Mexico City in November 2019, and, after a COVID-induced hiatus, hosted its second conference at the headquarters of the International Trade Union Confederation in Brussels in October 2022. I was pleased to attend both conferences, and in Brussels co-chaired a session in which participants from across the globe shared key safety and health challenges workers in their countries currently face.
The ILAW Network also publishes the Global Labour Rights Reporter, a forum primarily for labor and employment law practitioners worldwide, where legal and practical problems that directly affect workers and their organizations are discussed comparatively. Reporter issues are organized thematically, and highlight notable cases, trends in labor regulation, and analytical pieces that explore ways to expand protections and remedies for workers, and enhance accountability of governments, employers, and higher-ups in the supply chain.
A recent issue of the Reporter, published online in July, examines the challenges presented in "Protecting the Labour Rights of Migrant Workers and Refugees.” Migrant workers – defined as those employed in a country of which they are not a national – number around 170 million, constituting about 5% of the global workforce. In many countries, migrants lack statutory protections. In others, even if protected on paper, they are consigned to toil in the shadows and routinely subject to workplace abuse, especially when they lack work authorization. Simply, they are among the most disempowered workers in most societies because they do not have the same ability to invoke the law or organize a union as non-migrant workers. The migrant labor rights edition of the Reporter explores a variety of regulatory, legislative, and advocacy-based strategies intended to improve access to justice for migrant workers and refugee workers around the world.
In “Achieving Protections for Undocumented Workers in the U.S.: Obstacles, Milestones, Breakthroughs,” an article in the Reporter’s migrant labor rights edition, I examine the decades-old tension between the enforcement of U.S. worker protection legislation – including the Fair Labor Standards Act, the Occupational Safety and Health Act, the National Labor Relations Act, and Title VII of the Civil Rights Act, among others – and U.S. immigration laws. Worker protection laws apply to all employees in the U.S. regardless of documentation status. This broad coverage conflicts, at least conceptually, with immigration laws that authorize the deportation of individuals who lack authorization to be in this country. Numbering in the millions in this country, “undocumented” workers understandably fear adverse immigration consequences if they speak up about workplace abuse. Hence, most opt to remain silent and endure their exploitation. As a result, significant violations of the law go undetected and unremediated. Labor law enforcement is hamstrung.
The article looks at how U.S. administrations over the past few decades have dealt with the seemingly irreconcilable conflict between worker protection law enforcement, on the one hand, and immigration law enforcement, on the other. I call the road “bumpy,” as policies flipped from somewhat immigrant-worker friendly (e.g., the Obama Administration) to outright hostile (e.g., the Trump Administration). Some effort was made to insulate, at least temporarily, labor investigations, workers at investigated sites, and union organizing drives from immigration enforcement activity. But violations of mandated labor protections have remained endemic for the undocumented worker population, largely because they reasonably fear retaliation, including potential deportation, if they blow the whistle on unscrupulous employers.
The overall framing of the paper recognizes the persistent efforts of worker and immigration rights advocates in pressing for a reliable system under which undocumented workers can speak out against labor abuse with a much greater assurance that, if they do, they will obtain significant relief from immigration enforcement. After decades of advocacy, the Biden Administration’s Department of Homeland Security (DHS), in tandem with the major federal worker protection agencies, has now delivered such a system.
In the article, I describe how the system is intended to work. Indeed, since I wrote the paper, the system has been operating, with some glitches, but with some notable successes. Advocacy groups, with which I participate, will continue to make use of the system, monitor its effectiveness, and give feedback to both the labor agencies and DHS in hopes of improving its utility. But there’s no question it marks a major step forward for both labor agency enforcement efforts, and immigrant workers’ quest for workplace justice.
