Man Without Qualities

Friday, April 19, 2002

Resplendent in their new rights ...

News on the radio today included a report of a California State Court decision than an undocumented worker who received less than minimum wage for years of California employment is entitled to sue and receive from his employer “back pay” based on the difference between the minimum wage and the actual wage he was paid. In contrast, the United States Supreme Court had held to the contrary a few months ago in another case involving the right of an undocumented worker to obtain back pay after being illegally dismissed for union organizing.

Regardless of one’s views of undocumented workers, it should be clear that this California State Court decision is a major blow to their economic well being, and a classic example of the often-perverse consequences of “liberal” positions. One of the major reasons – perhaps THE normal major reason - for an undocumented worker to enter this country is the prospect of finding and obtaining work. There are often other incentives, including avoiding civil unrest in the immigrant’s homeland or just the desire to be an American. But for most people, work is the focus of the decision.

And one of the biggest advantages an undocumented worker has in finding work is that he or she is cheap. California is full of homes staffed by undocumented nannies, and paved with patios laid by undocumented masons. This work is often done at far below minimum wage. Many people would and do object to that, and it is not my purpose here to address this fact one way or the other.

But it should be clear that anyone who might hire an undocumented worker will have a much-reduced incentive if it is known that once the job is done the worker is free to sue for the difference between minimum wage and the wage which served as the incentive for hiring the worker in the first place.

Now there are good reasons undocumented workers do not sue. Suing exposes the worker’s immigration status, for one thing. Undocumented workers don’t often personally have the knowledge of the American courts and the English language to sue effectively, or the money to do it. So, at least at first, the effects of this California decision may be muted – but not negligible.

If the decision is upheld and persists as law, eventually “workers rights” organizations and perhaps some churches may make attorneys available. Workers will have the option to reveal their status and collect the back pay – even if that means leaving the country at least for a while. And, of course, it will be possible for the worker to simply assign or sell the claim to an American (say, his or her church), who can then sue without fear of exposing the immigrant to INS enforcement. This assignment may create a problem with proof of the claim, since the worker will not be able to appear. But if the other evidence is sufficient, the claim may be good in the hands of the assignee. Also, employers should be aware that if there is an “amnesty” for a wide class of such workers, as is now proposed in some quarters, the beneficiaries of the amnesty will be free to sue after they achieve legal status without fear of revealing their immigration status.

Once the right of an undocumented worker to receive such back pay is fully established, the courts can in their usual way begin awarding punitive damages to account for the fact that many cases will still go unreported. And then there will be class actions against larger employers. When the process is complete, undocumented workers may obtain something close to full and effective vindication of their rights to minimum wage.

Resplendent in their new rights, they may then be all but unemployable. The most bitter opponent of such immigration couldn't have designed a more effective deterrence system.

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