The Standing Predicament of Undocumented Workers in Pursuit of ERISA Section 502 Causes of Action
In 2023, approximately 8.8 million undocumented workers Footnote #1 content: This note uses the terms “undocumented worker,” “illegal alien,” or “unauthorized alien” interchangeably. While some readers may object to this language on political correctness grounds, these terms are utilized in the Immigration and Nationality Act and the Immigration Reform and Control Act. Hence, this note adopts these terms in line with the language of these Acts participated in the U.S. workforce, Footnote #2 content: The Impact of Biden’s Open Border on the American Workforce: Hearing Before the Subcomm. on Health, Emp., Lab., and Pensions of the H. Comm. on Educ. and the Workforce, 118th Cong. 24 (2023) (prepared testimony of Steven A. Camarota, Director of Research, Center for Immigration Studies). comprising nearly four percent of the nation’s labor pool. Footnote #3 content: Jeffrey S. Passel & Jens Manuel Krogstad, What We Know About Unauthorized Immigrants Living in the U.S., PEW RSCH. CTR. (Nov. 16, 2023), https://perma.cc/7ETL-C36B; Andy J. Semotiuk, New Report Details Huge Contribution Immigrants are Making to America, FORBES (Nov. 15, 2023, 07: 39 AM), https://perma.cc/ACB9-TA8B. Although undocumented workers are eligible for several of the same fundamental protections as American citizens—such as minimum wage, overtime pay, anti-discrimination measures, and workplace safety regulations— Footnote #4 content: Courts have consistently granted undocumented workers constitutional and statutory standing to pursue various workplace causes of action. See, e.g., Patel v. Quality Inn S., 846 F.2d 700, 706 (11th Cir. 1988) (affirming minimum wage and overtime protection for an undocumented worker under the Fair Labor Standards Act (FLSA)); Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064 n.4 (9th Cir. 2004) (recognizing that Title VII of the Civil Rights Act of 1964 extends protections against discrimination to undocumented workers on the basis on race, sex, national origin, etc.); Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 223 (2d Cir. 2006) (permitting an undocumented worker to recover compensatory damages for a workplace injury). See also Shannon Gleeson, Labor Rights for All? The Role of Undocumented Immigrant Status for Worker Claims Making, 35 L. & SOC. INQUIRY 561, 567 (2010) (observing that the National Labor Relations Board (“NLRB”), the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and the Occupational Safety and Health Administration (“OSHA”) enforce workplace protections for all workers, irrespective of a worker’s immigration status). undocumented workers often accept lower wages and hazardous working conditions due to limited bargaining power with employers. Footnote #5 content: Matthew Hall & Emily Greenman, The Occupational Cost of Being Illegal in the United States: Legal Status, Job Hazards, and Compensating Differentials, 49 INT’L MIGRATION REV. 406, 410 (2015 Moreover, many undocumented individuals work well into old age due to ineligibility for Social Security benefits and lack of access to retirement plans ben. Footnote #6 content: See Farida Jhabvala Romero, Without Retirement Options, Many Undocumented Farmworkers Keep Working Into Old Age, NPR (Mar. 8, 2023, 05:46 PM), https://perma.cc/3PTF-KU6Z.
Undocumented workers also face significant hurdles in accessing healthcare, often forcing them to delay or forgo medical treatment entirely. Footnote #7 content: E.g., Key Facts on Health Coverage of Immigrants, KAISER FAM. FOUND. (Sept. 17, 2023), https://perma.cc/ZC6J-BGLS Many lack health insurance coverage because they cannot access employer-sponsored plans and are ineligible for government programs, Footnote #8 content: Id. such as Medicaid; Footnote #9 content: 42 U.S.C. § 1396 et seq. the Children’s Health Insurance Program (CHIP) for their children; Footnote #10 content: Id. marketplace coverage under the Patient Protection and Affordable Care Act (ACA); Footnote #11 content: Id. at § 18001 et seq. and Medicare. Footnote #12 content: Id. at § 1395 et seq. Those who do have health insurance typically rely upon state-funded programs, Footnote #13 content: KAISER FAM. FOUND., supra note 7. such as Medi-Cal, California’s public health insurance program for low-income residents. Footnote #14 content: As of January 1, 2024, Medi-Cal began extending health insurance coverage to all eligible undo-cumented immigrants in California. See Brenda Fernanda Verano, California Becomes First State to Offer Health Insurance to all Eligible Undocumented Adults, USC ANNENBERG CTR. HEALTH JOURNALISM (Jan. 8, 2024), https://perma.cc/H7U8-F4Y5. These disparities in workplace rights and benefits contribute to a palpable tension that pervades labor and employment law, employee benefits regulations, and federal immigration policies. Central to this tension is a dispositive inquiry into the following legal question:Can undocumented workers who participate in benefit plans governed by the Employee Retirement Income Security Act of 1974 (ERISA) Footnote #15 content: 29 U.S.C. § 1001 et seq. assert claims under Section 502, or does their immigration status preclude them from pursuing these legal protections? Such claims may implicate denial of benefits, breaches of fiduciary duty, interference with the participants’ or beneficiaries’ exercise of rights under ERISA, and other statutory violations. Footnote #16 content: Id. at §§ 1132(a)(1)(B), 1132(a)(2).
For decades, immigration law and employment law have taken opposing perspectives on undocumented workers. Footnote #17 content: Tobias Kuehne, Immigration and Employment Federalism: State Courts and Workers’ Compensation for Unauthorized Workers, 43 BERKELEY J. EMP. & LAB. L. 415, 417 (2022). Immigration law often depicts undocumented workers as interlopers and questions their entitlement to benefits reserved for legally authorized workers. Footnote #18 content: Id. at 415. Conversely, employment law views undocumented workers as valuable contributors to the national workforce entitled to the same rights and protections afforded to their American citizen counterparts. Footnote #19 content: Id. These contrasting perspectives are reflected in the varying ways federal courts handle cases involving undocumented workers.
This note surveys the legal complexities surrounding ERISA-governed benefits for undocumented workers and the barriers faced when pursuing Section 502 causes of action. It explores the intersection of employee benefits law and immigration law, analyzing the interplay between ERISA, the Immigration Reform and Control Act of 1986 (IRCA), Footnote #21 content: Immigration Reform and Control Act, Pub. L. No. 99-603, 100 Stat. 3359 (1986). IRCA is codified, as amended, in scattered sections of tit. 8 of the United States Code. and the Immigration and Nationality Act (INA). Footnote #22 content: Immigration and Nationality Act, Pub. L. 88-414, 182 Stat. 66 (1952) (codified as amended in scattered sections of 8 U.S.C. §§ 1101 to 1537). Additionally, it highlights the challenges that undocumented workers encounter in federal courts when seeking benefits available to American citizens. This note advocates for a cohesive and consistent approach to address ERISA § 502 claims brought by undocumented workers. To address these complexities, it is necessary to first examine ERISA’s civil enforcement mechanism under Section 502, as it establishes the legal basis for determining whether undocumented workers can successfully assert claims to employee benefits.
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