Marginal Workers: How Legal Fault Lines Divide Workers and Leave Them without Protection

Marginal Workers: How Legal Fault Lines Divide Workers and Leave Them without Protection. By Ruben J. Garcia. New York: New York University Press, 2012. 195 pp. $45.00 cloth.Marginal Workers by Ruben J. Garcia conveys a strong sense of empathic engagement with those workers most vulnerable to employer exploitation in the United States: racial minorities, women, noncitizens, and others in the expanding low-wage sector. One also feels Garcia's deep-seated frustration with both the legal rules that have methodically weakened organized labor for the last half-century and the initiatives championed by unions to reverse that dynamic. Garcia makes a sustained plea for the incorporation of new sources of law-constitutional and interna- tional-in advocacy efforts for vulnerable workers in the United States. More ambitiously, he argues for a "paradigm shift" (p. 20) toward "a new global understanding of worker protection" (p. 115).Garcia persuasively argues that the National Labor Relations Act and the employment law regime-including discrimination and wage and hour laws-have failed vulnerable workers. This critique of American labor and employment law is familiar. Garcia extends the critical analysis by carefully examining the implications of key Supreme Court precedents, including NLRB v. Hoffman Plastics (2002), Emporium Capwell v. W.A.C.O. (1975), and Espinoza v. Farah Manufacturing (1973). In each of these cases, workers were made invisible to courts because they had fallen into the space between incongruously overlaid legal regimes. Garcia's focus on the workers in these cases-especially their race and immigration status-is an important addition to the critical canon. It is not surprising but it is worth acknowledging that labor and employment law continues to fail a growing class of low-wage workers marked by subordination along multiple dimensions.Garcia pivots from the individual stories to the larger problem caused by these cases within the labor movement over time: workers are divided along lines of race and immigration status and continue to lose bargaining power vis-a-vis their employers. Marginal Workers aims to set forth a coherent legal framework to serve as a floor for working conditions in the United States. Garcia argues that principles derived from the U.S. Constitution (specifi- cally, the First Amendment freedoms of speech and association and the Thirteenth Amendment proscription against involuntary servitude) and international human rights law (especially the con- ventions of the International Labor Organization) can provide a "default canon" (p. 11) in favor of workers' rights, especially when statutes are in conflict. Garcia's ideas on the use of constitutional principles to advance workers' rights are interesting and build on bodies of scholarship focused on the First and Thirteenth Amend- ments. He helpfully jumpstarts those conversations on behalf of workers, as the relative bleakness facing organized labor threatens to snuff out longer term efforts to reshape constitutional interpre- tation. If the American right can successfully narrow the Com- merce Clause and broaden application of the Second Amendment, then it behooves those studying the crisis of labor to think expan- sively as well.A smaller group of scholars, litigators, and activists have considered the use of human rights law to benefit American workers. Garcia is most emphatic in arguing for court decisions incorporating human rights principles and "changed attitudes" (p. 10) toward international standards among agency personnel. His ardor is rooted in an analysis of the battle in the United States between market fundamentalism and the right of workers to join unions. Garcia believes that workers have access to an interna- tional legal framework that favors their position over that of their bosses. The effort to "bring human rights home" to the United States, advanced by organizations such as the National Economic & Social Rights Initiative (NESRI), is laudable. …