Immigration Article of the Day: Moving Beyond Worker Rights to Worker Justice by Shefali Milczarek-Desai

Moving Beyond Worker Rights to Worker Justice by Shefali Milczarek-Desai, Texas A&M Law Review (forthcoming)

Abstract

Precarious workers’ on-the ground realities offer a startling truth often obscured by the jurisprudence of work—that worker justice is greatly circumscribed by and often lies beyond the reach of worker rights laws. This article is the first to evaluate whether the worker rights paradigm can fulfill the goals of worker justice and if not, to prefigure what might.

The worker rights paradigm emerged from a quest for worker justice that has been transmuted by work law and the political economy into a workers-as-rights-holders status requiring robust enforcement of worker rights laws. This article introduces the concept of empirical critical work law scholarship—a methodology that synthesizes critical legal theories with empirical research across law, economics, and sociology—to show that the worker rights paradigm has been progressively undermined for decades through systemic violations, inadequate enforcement, and legal structures that both generate and depend upon its failures.

It also centers low-wage immigrant and migrant workers—the proverbial canaries in the coal mine for a growing American workforce vulnerable to exploitation. These precarious workers are chiefly rights accumulators who, even if they become rights-vindicators, cannot achieve the goals of worker justice. It tells the story of Josefina, a composite worker drawn from hundreds of similarly situated workers’ experiences. Josefina’s struggles to actualize her worker rights-based status—and through it, to obtain worker justice—paint a bleak picture of a worker rights landscape that not only fails to provide meaningful legal remedies to precarious workers but also often harms their well-being.

Finally, moving beyond critique, this article embarks on a prefigurative endeavor. It proposes a novel theoretical approach to worker justice by drawing from Hannah Arendt’s phenomenology in The Human Condition. Based on this new framework, it begins to imagine how precarious workers might transcend the worker rights paradigm to better realize worker justice.