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Journal of Law and Policy

Abstract

Over the past several decades, there has been an unmistakable tension between labor law and immigration law in the United States. That tension, addressed by the Supreme Court most recently in 2001, still exists for unauthorized immigrant workers who wish to assert their labor rights under the National Labor Relations Act (NLRA). While the Obama Administration has made significant strides in easing the concerns that unauthorized immigrant workers may have before filing an NLRA claim, the unavailability of the back pay remedy and the uncertainty of protection from immigration authorities leave little incentive for such workers to assert their labor rights. The federal government has every reason to incentivize workers to stand up against employers violating the NLRA, regardless of their immigration status, because it ensures a fair and safe workplace for all. This Note advocates for the federal government to (1) allow unauthorized immigrants to recover back pay under the NLRA, and (2) create a deferred action application process for those unauthorized immigrants who bring claims under the NLRA. Such action would deter employers from violating employees’ rights, uphold the humanitarian values behind both labor and immigration policy, and reward unauthorized immigrants who unselfishly assert claims for the benefit of other workers.