Two undocumented workers successfully asserted that the United States violated the right to non-discrimination by failing to protect their labor rights assured under the American Declaration of the Rights and Duties of Man. The IACHR recommended that there be no distinctions in employment and labor rights and remedies based on immigration status and work authorization, once a person commences work as an employee.
Enforcement of Commission recommendations has historically been challenging, particularly where subnational governments and legal systems may be implicated, largely – according to the U.S. government – because of the U.S.’s federalist system of governance, and deference to the states in how they enforce their laws, as well as the U.S.’s limited record on treaty ratification. Nonetheless, the decision is a further recognition of the right to non-discrimination and equality, applicable to all levels of government in all States. While the petitioners’ counsel is not optimistic that their clients will receive financial compensation, advocates now have an additional precedent confirming that all workers, regardless of immigration status, are entitled to their full rights and remedies under the law once they have entered into an employment relationship. (Professor Sarah Paoletti, Director, Transnational Legal Clinic, University of Pennsylvania Law School, email interview, February 15, 2017)
This landmark decision, which affirms that labor rights are also human rights (para.119), is the first to address the employment rights of undocumented migrants in the Americas.
According to Professor Paoletti, the case serves as an important marker of recognized norms of human rights as applied to undocumented workers, and explicitly recognizes that international law requires undocumented workers be treated as equal to their citizen counterparts in their enjoyment of all rights and full remedies where there is a breach of their rights. The American Civil Liberties Union has commented that this case has the “potential to impact the lives of millions of undocumented workers who have been living in the shadows while contributing to our economy and society.”
The petition was filed by the American Civil Liberties Union, the National Employment Law Project, and the Transnational Legal Clinic of the University of Pennsylvania Law School. In addition, the following organizations participated in the filing of the original petition: AFL-CIO, Inter-Faith Justice Network, United Mineworkers, and 6 individual petitioners.