Business Law Chapter 5 The Individual Bringing The Charge Making The

Chapter 5

THE GLOBAL PERSPECTIVE: INTERNATIONAL EMPLOYMENT LAW AND AMERICAN

IMMIGRATION POLICY

INTRODUCTION

The fifth chapter focuses on international labor and employment law, corporate social responsibility, the

and employment law and continues with a discussion on immigration law and policy.

CHAPTER OUTLINE

5-1 INTERNATIONAL EMPLOYMENT LAW AND POLICY

A. The International Labor Organization*

i. The ILO has promulgated a vast scheme of labor and employment laws,

regulations, and guidelines.

B. In international employment law, conventions* are the uniform codes of procedure and

standards of conduct that the ILO seeks to promulgate and enforce in order to establish

U.S.), employment discrimination, and collective bargaining.

*International Labor Organization (ILO) is a United Nations subsidiary agency dealing

with international labor standards, workers’ rights, and global employment issues.

*Convention is an international law, usually sponsored by the United Nations or other multi-

national organizations, to which a number of nations agree to adhere.

i. International conventions to which the United States is a signatory, that can affect

international labor relations and employment litigation, include:

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 5

C. Concern about companies conducting business across borders has led to the notion of global

corporate responsibility*, held by many advocates of workers’ rights and environmental

issues.

*Global corporate responsibility is the philosophy that says that corporations should behave as

good global citizens.

ETHICAL DILEMMA

Should Multinational Corporations Be Required to Act According to Ethical Standards in Their Labor

and Employment Relations?

According to Senior Fellow and Director of Globalization Studies Susan Aaronson of the Kenan Institute,

Washington Center, global corporate social responsibility is: a foreign policy issue in that corporations

are ambassadors of their nation’s values; an economic issue in that America’s future markets are

overseas; and a moral issue on which the reputation of the corporation, its management, and shareholders

depends on doing business abroad. Whether corporate social responsibility extends to treatment of foreign

employees may depend upon the policies and laws of the host nation. For instance, Brazil, the United

Kingdom, Germany, Belgium, the Dutch and France have recently taken steps to improve adherence to

social responsibility guidelines.

D. The Alien Tort Claims Act and International Workers’ Rights

i. The Alien Tort Claims Act* was enacted in 1789 as part of the original

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ii. Attorneys seeking to vindicate the rights of foreign workers allegedly oppressed

*Alien Tort Claims Act is a federal statute which provides a cause of action for aggrieved

aliens in U.S. courts.

CASE 5.1 SAREI V. RIO TINTO, PLC

2008 WL 5220286 (9th Cir. 2008)

Facts: Bougainville is an island located just off the main island of Papua New Guinea (PNG). Defendants,

Rio Tinto, operated a mine on Bougainville beginning in the 1960s with the assistance of the PNG

government. In November 1988, after Rio Tinto had caused intense pollution, rainforest destruction and

slave-like treatment of its workers, some Bougainvilleans revolted and forced closure of the mine. Under

pressure from Rio Tinto, the PNG government quashed the uprising, and on February 24, 1990, the

country entered into a civil war. Under further pressure from Rio Tinto, the PNG government imposed a

military blockade on the island that lasted almost a decade and engaged in acts of cruelty, and as a result,

Issue: Should the plaintiffs be required to exhaust their other available remedies before being permitted to

sue in a U.S. court under the Alien Tort Statute?

Decision: Perhaps. The plurality opinion noted that, local remedies should be considered in the

appropriate case for claims brought under ATS, and the case is an appropriate case for such consideration

CASE 5.2 ROMERO V. DRUMMOND COMPANY, INC.

2008 WL 5274192 (11th Cir. 2008)

Background: A Colombian labor union sued executives of Drummond, Ltd., the Colombian subsidiary of

an American coal mining company located principally in Alabama, under the Alien Tort Statute and the

Torture Victim Protection Act of 1991, claiming that Drummond, with the knowledge of company

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 5

executives in the United States, hired paramilitary operatives to torture and assassinate leaders of the

union business administrator. The district court granted partial summary judgment against them; one

claim for relief—that Drummond aided and abetted the killings, which were war crimes—remained. The

jury returned a verdict for Drummond. The plaintiffs appealed the partial summary judgment and a series

of discovery and evidentiary rulings made before and during the trial. Plaintiffs grouped its claims under

the Torture Act, a claim of wrongful death under Colombian law, and claims of intentional infliction of

emotional distress, false imprisonment, and assault under Alabama law. Drummond challenged the

subject-matter jurisdiction of the district court.

Issues: Does the Torture Victim Protection Act and Alien Tort Statute allow for suits against corporate

defendants? Did the court have jurisdiction to hear the case? Did the court err in disallowing plaintiffs’

discovery and evidentiary requests?

Decision: The district judge’s decision was affirmed, defeating the plaintiffs’ claims. The Court held that

ANSWERS TO CASE QUESTIONS

1. The plaintiffs did not seek to secure justice in their own countries probably due to fear of homeland

retaliation. Furthermore, it is difficult for a victim of torture under the umbrella of a nation’s law to

bring suit to vindicate such abuses; and more than likely, they cannot sue in the locality where the

2. The Colombian court would probably be better equipped to handle the wrongful death action case.

3. Student’s response to this question may vary. Some nations lack meaningful human rights and labor

legislation and many practices of these countries would shock the conscience, therefore global labor

4. In adjudicating these cases, a U.S. court would not be intruding upon foreign policy because the Alien

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5. The court in Sarei suggested that the plaintiff’s should first have to exhaust their local remedies before

iii. Like the earlier 9th Cir. case, the 11th Cir. case demonstrates that the use of the Alien

Tort Statute to establish jurisdiction and the use of the Torture Act will be difficult

in the context of environmental and toxic tort matters occurring in third countries.

iv. The Alien Tort Statute is unlikely to have a high impact upon the way U.S.

corporations deal with their oversea employees. Therefore, global labor

organizations may present the highest prospect of success.

5-2 GLOBAL LABOR UNIONS

Recently the international trade union movement has begun to use the term global unions* as an

umbrella designation, which includes the International Confederation of Free Trade Unions,

which represents national trade union centers around the globe and the Union Network

International.

*Global unions are international labor organizations, which typically attempt to organize

employees of globalized industries.

A. Union Network International (UNI)

i. Union Network International (UNI) is an organization aimed at meeting the

THE WORKING LAW

Workers Uniting Claims to Represent Three Million Members Worldwide, Uses the Social Net to

Organize

Workers Uniting is a new international labor organization created through the combination of Unite, the

largest union in the United Kingdom and Ireland, and the United Steelworkers, North America’s largest

private sector union.

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5-3 IMMIGRATION LAW AND POLICY

A. Immigration Reform and Control Act of 1986*

i. Historical Roots

ii. The purposes of the Immigration Reform and Control Act (IRCA) of 1986* were to:

1. Provide a solution for controlling illegal immigration to the United States;

*Immigration Reform and Control Act (IRCA) of 1986 is the most recent major overhaul of

U.S. immigration law.

iii. Primarily by the creation of civil and criminal penalties for employers who hire

undocumented (illegal) aliens, IRCA intended to stem the flow of illegal immigrants

by creating a new immigrant category for dependents of employees of international

B. Employer Compliance with IRCA

i. The pre-employment question that must be asked is: Is the employee a U.S. citizen

or lawfully authorized to work in the United States? An employer must show that it

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ii. A U.S. passport, certificate of U.S. citizenship, certificate of naturalization, or

certain resident alien cards establish both.

1. Identity documents include a driver’s license, other state-issued card, or

iii. One of the proposals afloat in the Congress for immigrant verification and control is

an electronic employment-verification system aimed at screening approximately 54

million new hires annually, which could cost $11.7 billion.

iv. The employer is expected to examine the proffered documents, and if the

documents appear reasonably on their face to be genuine and to relate to the person

presenting them, they are to be accepted. Refusal of such documents may be viewed

by the INS as an unfair immigration-related employment practice.

Documents HR Offices May Use to Verify New Employee’s Eligibility

For identity:

Driver’s license

Other state-issued I.D. card (e.g., a Pennsylvania Liquor Control Board I.D. card)

For employment authorization:

Social Security card

Birth certificate

C. Who Enforces U.S. Immigration Laws?

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 5

i. U.S. Citizenship and Immigration Services: The USCIS, part of the Department of

1. adjudication of immigrant visa petitions;

ii. U.S. Immigration and Customs Enforcement: Created in March 2003, Immigration

and Customs Enforcement (ICE) is the largest investigative branch of the

iii. U.S. Department of Justice: The DOJ responsibilities include enforcing and

iv. The Office of Special Counsel for Immigration-Related Unfair Employment

v. U.S. Social Security Administration: The Social Security Administration (SSA)

vi. Federal Bureau of Investigation: After the tragic events of September 11, 2001, the

director of the Bureau articulated ten top FBI priorities: protecting the United States

vii. U.S. Department of Labor: The Department of Labor fosters and promotes the

welfare of the job seekers, wage earners, and retirees of the United States by

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D. Anatomy of an ICE Raid

i. During the first week of March 2007, ICE agents raider a leather factory in New

Bedford, Massachusetts and arrested 361 workers.

1. The detainees were taken to a former Army base near Ayer, Massachusetts,

and the following day, some 60 women, sole caretakers of their children,

CASE 5.3 AGUILAR V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

510 F.3d (U.S. Ct. App. 1st Cir.)

Background: On March 6, 2007, federal officers conducted a raid as part of “Operation United Front,”

targeting Michael Bianco, Inc. ICE agents appeared unannounced and arrested five executives on

immigration-related criminal charges and took more than 300 rank-and-file employees into custody for

civil immigration infractions. ICE transported some detainees to Fort Devens in Massachusetts. Citing a

shortage of available bed space in Massachusetts, ICE transferred aliens to faraway detention and

removal operation centers (DROs), such as a DRO in El Paso, Texas. Petitioners allege that ICE actions

temporarily thwarted any effective investigation into the detainees’ needs. As a result, a substantial

number of the detainees’ minor children were left for varying periods of time without adult supervision.

The detainees averred that ICE inhibited their exercise of the right to counsel because volunteer lawyers

were turned away or only allowed contact with those who specifically asked for counsel.

On the afternoon of March 8, the Guatemalan consul filed a petition for a writ of habeas corpus and a

compliant for declaratory and injunctive relief in the United States District Court for the District of

Massachusetts. The action sought the detainees’ immediate release, or, in the alternative, a temporary

restraining order halting further transfers. The district court enjoined ICE from moving any of the

retaining detainees out of Massachusetts.

Issue: Does the court have subject matter jurisdiction?

Decision: No. The court found there is no case law suggesting that claims similar to those asserted here

are actionable under the substantive component of the Due Process Clause, and it is not for the judiciary

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ANSWERS TO CASE QUESTIONS

1. Student’s response to this question will vary. The question is intended for the student to think about

the protections, or lack thereof, offered to illegal aliens. In essence, this sounds like a rhetorical

question at best. An alien is surely a “person” in any ordinary sense of the term. Aliens, even aliens

whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due

2. The burden of proof simply means that the necessity of proof always lie with the person who lays

charges. It is reasonable to place the burden of proof on the ICE agency that the detainees do not

have a right to stay in the country because of their status. In making an allegation; they should

prove their claim according to the requisite standard of proof. Likewise, by regulation, in

3. The ICE had complete disregard for the detainees’ individual or family circumstances. The

employees were scattered to holding facilities like cargo, thus depriving them of access to their

4. Student’s answers will vary on this question. By law, a person found to be an illegal alien is subject

to deportation. However, the answer to this question is based upon specific facts and circumstances

of each case and is analyzed on a case-by-case basis, such as if the alien has been in the U.S. a long

5. Student’s answers will of course vary on this question. Possible policy considerations which

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ii. Aftermath

1. The New Bedford leather goods company was sold to a Missouri-based

manufacturer of military and law enforcement gear. Michael Bianco Inc.

F. State and Local Involvement with Illegal Immigrants

i. Many state and local governments, which are usually deemed to be preempted from

intruding into immigration law and policy, have become frustrated with federal

iii. California

1. On October 4, 2006, the city of Escondido passed an ordinance that allowed

residents, businesses and city officials to file written complaints with the

iv. Missouri

1. During the summer of 2006, Valley Park passed an ordinance which said

v. Texas

1. In November 2006, the city council of Farmers Branch passed an ordinance

authorizing fines for landlords who rent to illegal aliens and also declared

English to be the official language of the community.

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vi. Challenges by the ACLU and/or pro-immigration immigrant groups challenged the

the largest number in the agency’s history.

G. The Legal Arizona Workers Act has stood out as being the only ordinance so far that survived all

legal challenges. In May of 2011, the Supreme Court of the United States made a decision

upholding the law.

CASE 5.4 CHAMBER OF COMMERCE OF U.S. V. WHITING

131 S.Ct. 1968 (U.S. 2011)

Facts: The Chamber of Commerce and various business and civil rights organizations brought action

challenging the validity of Arizona’s unauthorized alien employment law, which allowed the suspension

and revocation of business licenses for employing unauthorized aliens and required every employer to

verify the employment eligibility of hired employees through a specific Internet-based system. The

United States District Court for the District of Arizona upheld the statute, and the plaintiffs appealed. The

United States Court of Appeals for the Ninth Circuit affirmed the decision. Certiorari was granted.

Issue: Is the Legal Arizona Workers Act Preempted by federal immigration law?

Decision: The Supreme Court affirmed the decision of the lower court and held that:

(1) the provision of Arizona law allowing suspension and revocation of business licenses fell within the

CASE 5.4 ARIZONA V. UNITED STATES

132 S.Ct. 2492 (U.S. 2012)

Facts: An Arizona statute known as S.B. 1070 was enacted in 2010 to address pressing issues related to

the large number of unlawful aliens in the State. The United States sought to enjoin the law as preempted.

believe … has committed any public offense that makes the person removable from the United States”;

and § 2(B) requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances,

to verify the person’s immigration status with the Federal Government. The Ninth Circuit affirmed,

agreeing that the United States had established a likelihood of success on its preemption claims.

Decision: The Supreme Court held that

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unlawfully in United States was improper.

i. The Arizona Attorney general has moved forward with implementation of the act.

Violation of the new state law will subject the employer to probation, and may

subject the employer to a suspension or revocation of all license depending on the

following conditions:

1. For a first violation of an employer knowingly hiring an unauthorized alien,

the court shall order mandatory three years’ probation and may suspend all

licenses held by the employer for a maximum of ten days.

H. President Obama’s Executive Order

i. In 2014, immigrant-advocacy groups clamored for reform at the national level.

President Obama issued an executive order on November 20, 2014. His order

mandated a number of initiatives by the federal bureaucracy, the major ones

being:

1. Expanding the population eligible for the Deferred Action for Childhood

Arrivals (DACA) program;

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ANSWERS TO END OF CHAPTER PROBLEMS

QUESTIONS

1. Student’s responses to this question may vary. An argument can be made for free trade and

outsourcing. The argument that although many foreign workers work for a small fraction of what

Americans do, providing them with the opportunity to work for multi-national corporations

2. Student’s responses to this question may vary. Morally speaking, the benefit that these workers

receive from being “exploited” hardly justifies their exploitation. Economically speaking, the

3. Student’s responses to this question may vary. An American country doing business in another

country may be expected to perform better because it is immoral for workers to be subject to

4. Ignoring the presence of these undocumented workers would undermine the longstanding

principles and immigration laws that we have set in place. There is a system of legal entry that

needs to be adhered to and allowing workers to bypass the legal process and proceed illegally

without any repercussions would open the door for a flood of illegal immigrants to come to

5. Student’s response to this question may vary. Illegal aliens are already receiving certain social

services such as access to health care and public education for their children. The federal

Emergency Medical Treatment and Active Labor Act (EMTALA) mandate that U.S. hospitals

with emergency room service must treat anyone who requires care, including illegal aliens.

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 5

CASE PROBLEMS

6. The United States District Court of International Trade dismissed the suit primarily because the

7. Under the Aliens Tort Claims Act (ATCA), the plaintiffs have a right to proceed with the claims

they are setting forth in a U.S. court. In addition, according to the United States District for the

8. The plaintiff’s case was dismissed in part and vacated in part. The Court concluded in part that

the plaintiffs did suffer extreme emotional pain and suffering that is actionable under the Alien

Tort Act (ATA) and Torture Victim Protection Act (TVPA). However, the Court found that the

9. According to the United States Court of Appeals for the Tenth Circuit held that National Labor

Relations Act (NLRA) did not preempt tribal government from enacting right–to–work ordinance.

Also, the Court determined that Congress did not intend by its NLRA provisions to preempt tribal

10. The United States District Court in Maine concluded, “(i) the plaintiffs have failed to establish

standing to seek the requested relief or that their claims are ripe, and, in any event, (ii) pursuant to

8 U.S.C. § 1252(a)(2)(B)(ii), the court is without jurisdiction to affect any decision or action the

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 5

11. According to the District Court, California’s whistle-blower protection laws merely prevented

Japanese commercial air carriers from retaliating against employees for reporting and resisting

domestic law violation, and in no way conflicted with carrier’s limited treaty right, under

Friendship, Commerce, and Navigation Treaty between United States and Japan, to discriminate

in favor of Japanese citizens in filling certain managerial and technical positions, and therefore

12. The governor’s directive of enforcing the state law, which declares the illegality of receipt of tax

credits by employers of illegal aliens, in the local county could be a violation of the employer’s

due process. Referring the enforcement of the law to local judges who are probably incapable and

13. Allowing Rodriguez an adjustment of status despite his previous history of legal violations would

reward him for breaking the law. Also, Rodriguez’s case cannot go unpunished, it would send the

message to other illegal aliens that violating U.S. immigration laws and false identity pays. In

contrast, deporting Rodriguez to Mexico may cause an undue burden and have harsh

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14. The United States Court of Appeals declared that undocumented aliens working for employer

who refused to bargain collectively with their union representatives after vote to unionize were

“employees” protected by NLRA, as required for enforcement of order by National Labor

Relations Board (NLRB) compelling employer to bargain after valid election by employees, since

15. The U.S. Court of Appeals for the Eight Circuit denied Yu’s motion to suppress evidence of his

confession during investigations. The Court found that waiver of his right to remain silent during

interview of defendant by Bureau of Immigration and Customs Enforcement (ICE) agents during

HYPOTHETICAL QUESTIONS

16. Student’s responses to this question may vary. The benefits of a company adopting the triple

bottom line accounting principle is that the company will make better decisions as it relates to

their impact on the environment and labor relations. It can lead to reduced costs in environmental

law violations. It can also lead to greater goodwill and loyalty among the global community and

17. The plaintiffs must show practical assistance, encouragement, or moral support that had a

substantial effect on the perpetration of the crimes. The plaintiffs must also show that the forced

labor by the Myanmar military was a direct result of state involvement by the oil company.

Plaintiff must do so by providing sufficient evidence or correlation that the U.S. oil company

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 5

18. Student’s responses will vary on this question. The court should consider what economical

19. Student’s response will vary on this question. The weight that an Immigration judge gives to each

of the factors listed is up to his/her discretion. This is an opportunity for students to discuss the

20. Student’s response to this question will vary. Presumably, ethics dictates that a company would

treat undocumented workers with the same respect that would be provided to a legal workforce.