Discovering “Immployment” Law: The Constitutionality of Subfederal Immigration Regulation at Work
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Griffith, Kati L.
[Excerpt] This Article develops two general preemption frameworks that feature federal employment law. It first devises and applies an implied-preemption analysis of subfederal employer-sanctions laws based on the preemptive force of FLSA and Title VII. In doing so, this Article reveals that the four subfederal employer-sanctions laws that have produced conflicting court decisions are unconstitutional because they stand as obstacles to fundamental policies underlying FLSA and Title VII. Specifically, these four subfederal laws, along with other subfederal laws that share their qualities, conflict with core federal employment policy goals of protecting employees from employment discrimination and encouraging valid employee-initiated complaints from marginalized workers for the benefit of employees more broadly. Second, this Article develops a hybrid preemption framework that simultaneously considers the policy goals of federal immigration law and federal employment law. This new hybrid framework highlights an additional theory for preemption of these subfederal employer-sanctions laws. This Article’s analytical focus on legal theories for preemption of subfederal employer-sanctions also indirectly exposes a number of policy tensions between workplace-based immigration regulation and federal workplace protections more generally.
immigration law; workplace law; undocumented workers; labor law; workplace protections
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