20 Equal Labor Rights for Undocumented Migrant Workers

Abstract

This chapter summarizes Mexico's questions concerning de jure discrimination prejudicial to labor rights of undocumented migrant workers. It then analyzes leading cases of de jure discrimination in U.S. domestic remedies for undocumented migrant workers- Sure-Tan v. National Labor Relations Board and Hoffman -as well as the intervening Immigration Reform and Control Act of 1986. The chapter then considers the state of applicable international law prior to the Court's Advisory Opinion: (1) Fundamental international labor rights of all workers, including undocumented workers. (2) Treaties specifically protecting undocumented workers, but only in a relatively few states parties. (3) Whether discrimination against migrant workers, based on their undocumented status, was limited by international norms of equality and non-discrimination. (4) Whether denial of certain remedies for undocumented workers violated their internationally protected rights. (5) The progressive development of the internationally protected rights of migrant workers. (6) Whether norms of equality and non-discrimination are jus cogens . Keywords: court's advisory opinion; de jure discrimination; international law; labor rights; Mexico; non-discrimination; undocumented migrant workers