The COVID-19 pandemic shone a light on the critical role to the nation’s economy of noncitizen workers performing frontline, essential, low-wage jobs. In this forthcoming article, Shefali Milczarek-Desai focuses on the failure of workers’ rights laws to protect the interests of the “brown collar workforce,” thereby exacerbating individual and public health risks during the pandemic. To remedy this problem, she proposes to reframe paid sick leave as more than just a workplace right; rather, it should be considered a strategy to promote the health and safety of the entire population.
Professor Milczarek-Desai’s work is a timely exploration of a complex issue at the intersection of immigration law and labor and employment law, which is informed by her practice in the Workers’ Rights Clinic at the University of Arizona’s James E. Rogers College of Law. Although numerous other scholars have written about the mistreatment of undocumented noncitizens in the workplace, she notes that no prior proposal addresses the root cause of the problem: that noncitizen workers are considered noncitizens first, workers second. They are “impossible subjects” in our society—vital to America’s success, yet often outside the law’s protection. Her work raises important questions about who gets left behind in a workers’ rights-based framework.
The article begins with an analysis of the ways in which existing paid sick leave laws—which only existed at the state and local level prior to the COVID-19 pandemic—fail noncitizen workers. Professor Milczarek-Desai draws on Critical Race Theory’s literature on the limits of formal equality to demonstrate how even when noncitizen workers are not formally excluded from workplace protection laws, they are unable to take advantage of those rights for reasons relating to their immigration status. Specifically, due to the employer prohibition on hiring undocumented immigrant workers in the Immigration Reform and Control Act of 1986, those with precarious immigration situations must work “off the books,” and reporting violations of their workplace rights may put them at greater risk of employer retaliation and immigration enforcement. Therefore, noncitizens often do not benefit from laws, including paid sick leave laws, that are designed to help all workers.
Professor Milczarek-Desai connects her analysis to a larger theme within immigration law and administrative law scholarship: How should Congress and courts navigate mission mismatch in shared regulatory space? Here, a goal of immigration policy—prohibiting hiring of undocumented immigrants to reduce migrant flows—conflicts with the goals of worker protection policy. And as is often the case, immigration enforcement goals are favored.
Without a realistic hope for immigration reform, Professor Milczarek-Desai looks to paid sick leave laws—one type of worker protection laws—as a promising site for reframing noncitizens’ rights in the workplace so that noncitizens are, at last, considered “possible subjects” of employment and labor laws. To avoid the conflict between the goals of immigration enforcement and the protection of workers’ rights, she proposes that scholars and advocates situate paid sick leave within a public health—as opposed to workers’ rights—framework. The public health rationales for paid sick leave are truly universal, and Professor Milczarek-Desai cites several empirical studies demonstrating the health benefits of paid sick leave laws for individuals and communities. Although the first federal paid sick leave law—which had no explicit immigration status restrictions—was temporary and enacted as part of COVID relief legislation, she suggests that the time is right for legal advocates to work alongside noncitizen worker communities to design paid sick leave laws that actually enable noncitizen workers to benefit from them.
I encourage health law scholars to read this article and view it as an important contribution to the Health Justice legal canon, which engages critical perspectives to illuminate the many forces that shape health and emphasizes subordination as the root cause of health inequity.
Professor Makhlouf’s excellent review focuses on exactly what is at the heart of the paper — the “mission mismatch,” as she puts it, between immigration laws and workers’ rights laws that lead to negative consequences for vulnerable, immigrant and migrant individuals as well as their communities. She then highlights how this mismatch can be identified and potentially resolved through a health justice framework. Thank you Professor Makhlouf for your thorough and insightful review!