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Asian American Policy Review

Topic / Gender, Race and Identity

Addressing Labor Exploitation: An Examination of Undocumented Asian Americans in the Workplace

This article reviews unethical business practices in restaurants and nail salons vis à vis undocumented Asian American employees and suggests policy solutions to protect their economic justice and equity.


The issue of labor rights for undocumented workers is a recurring topic in American political discourse in which we rarely question the identity or demographics of the workers being discussed. Americans are familiar with stories of Mexican or other Latino American immigrants working in low-wage, “unskilled” jobs without proper papers, facing termination or deportation should they speak up about missing wages or harassment, but Asian Americans need to also be included in the discussion.

The “model minority myth” erases Asian Americans from the narrative of undocumented Americans by assuming them to be successful model citizens. [i] The popular conception of Asian Americans is that they are successful and law-abiding; the notion that they might lack legal immigration status or work in low-wage “unskilled” jobs is seemingly unthinkable. But this myth not only obscures the experiences of over 1.7 million undocumented Asian Americans,[ii] it also shames other communities of color for not achieving the same level of perceived success. Examining the often-ignored experiences of undocumented Asian Americans disrupts the “model minority” narrative, making way for social justice-oriented policies that holistically address disparities between all racial and ethnic groups. Countering this myth by shedding light on the economic exploitation of undocumented Asian Americans is necessary to move policymakers to action and support socioeconomic mobility for all communities of color.

Undocumented immigrants are among the most marginalized demographics in the United States because they are de facto unprotected from workplace exploitation – even if labor laws theoretically protect them, it is nearly impossible to claim these protections in practice. This policy brief will explore the rarely-examined experiences of low-wage undocumented Asian Americans in the service industry, particularly in the most common fields of restaurants and nail salons. By specifically examining restaurants and nail salons, we can expand the narrative of undocumented Americans to include undocumented Asian American workers. We don’t yet have data for undocumented Asian Americans broken down by industry, but we can extrapolate from existing data that these are the two most common industries in which they work. Undocumented immigrants are overrepresented in the service industry, with 32% of them working in service industry jobs compared with 17% of U.S. born workers.[iii] Furthermore, the top two industries for blue collar Asian American immigrants are restaurants and other food services, representing over 600,000 workers, and nail salons and other personal care services, representing over 180,000 workers.[iv] This policy paper will propose the following measures to alleviate their exploitation: providing multilingual know-your-rights workshops, removing barriers to obtaining legal work status, and introducing robust legal protection against employer retaliation.

Economic Exploitation of Undocumented Workers

The most significant example of economic exploitation is wage theft, which is the failure to pay at least minimum wage, failure to pay wages for all hours worked, failure to pay an agreed-upon rate, confiscation of tips, and any other situation in which an employer fails to pay the proper wages for their employees’ labor. Even outside of undocumented labor, wage theft is nearly 3 times as costly as traditional theft like shoplifting. In 2012, employers nationwide were ordered to pay a total of $933 million in back wages, compared to only $350 million reported shoplifted.[v] In reality, the problem is likely much larger than that. While businesses have every incentive to report all losses due to theft, wage theft generally goes under-reported. Not every victim of wage theft chooses to file a claim, and even when a claim is made, it is often difficult for the employees to win back wages. Ever since Hoffman v. National Labor Relations Board (NLRB) in 2002, workers with false authorization papers are ineligible to receive back wages.[vi] This means that the aforementioned figure of $933 million doesn’t include wages stolen from employees without work authorization and/or legal immigration status. While no one knows the true dollar value of total wage theft in the United States, we do know it is higher than $933 million with some estimates reaching $15 billion annually.[vii]

Economic exploitation can also take the form of scheduling long hours with no breaks, hazardous work environments, and unlawful termination in response to speaking up against workplace abuses. Employees without legal immigration status are especially vulnerable to these abuses because they fear retaliatory deportation by Immigration and Customs Enforcement (ICE). These workers are nominally entitled to the same labor protections as any other group[viii] (with the exception of eligibility for back wages), but there is a noticeable difference between what the law says on paper and how it actually gets enforced.

Examples of Undocumented Asian American Labor Exploitation

As mentioned previously, restaurants are one of the most common settings for exploitation of undocumented Asian Americans. Take, for example, the affordable Korean Barbecue restaurants popular in Los Angeles and around the country. A Los Angeles Times exposé[ix] depicts exploitative practices in these restaurants, including various forms of wage theft. This is particularly salient in Los Angeles where the Korean Immigrant Workers’ Alliance[x] estimates that $1.4 billion in wages are stolen yearly. The article notes that for many Korean American Angelenos, who may lack documentation or have limited English proficiency, there is no choice but to enter low-wage manual labor. These jobs are often arranged by family members or other members of the local Korean-speaking community. The workers’ resulting lack of agency makes it much easier for the employer to commit labor violations, including unpaid hours and unsafe working conditions. One of the workers at the restaurant featured in the article described going blind from exposure to a highly acidic substance used to clean the grills.

Similar practices run rampant in New York City restaurants and street food vendors that employ undocumented South Asian Americans. According to a 2012 report by Desis Rising Up & Moving (DRUM) in the city, South Asian restaurant workers make less than half of what the average New Yorker makes per hour, and a staggering 74% make less than minimum wage. Even more shockingly, 96% of them make less than New York’s “Self-Sufficiency Standard” of $13.77 per hour in 2012 dollars.[xi] An interviewed Pakistani American restaurant worker, who baked 150 pieces of naan per hour, described lacking burn coverage and medical benefits. He burned himself often because of the sheer volume of bread he had to bake on a daily basis forced him to work faster than what would be considered a safe pace. His previous job was even worse: he described working long hours with no breaks, and an employer that failed to pay him and frequently subjected him to verbal abuse. His peers were afraid to speak up because “most of the workers [in New York South Asian restaurants were] undocumented, [didn’t] have any papers, or [knew] how to speak English.” The interviewee himself was an engineer in Pakistan, but because his qualifications didn’t translate to the U.S. he had little other choice but to work in foodservice. New York City’s minimum wage is now $15 per hour, but this is of little help to those being paid less than minimum wage under the table with no opportunity to demand more.

Nail salons are the second most common place of employment for undocumented Asian Americans, especially women, who make up 95% of employees.[xii] Particularly in New York City, described as “The Manicure Capital” by the New York Times in a 2015 exposé,[xiii] Asian women working in nail salons are subjected to some of the most striking examples of exploitation. Not only are they paid below minimum wage, but they are also usually required to pay a “training fee” of $100 or even $200,[xiv] and are paid zero wages for the first few months until their employers are satisfied enough to pay them. During those initial months the employees rely solely on tips to survive, but even those tips are often stolen as punishment. When the workers finally receive regular wages, they are usually far below minimum wage, as little as $10 per day.[xv] On top of that, the workers are routinely subjected to video surveillance and verbal and physical abuse.

In addition to these labor violations, there is a gendered aspect to their exploitation regarding the performance of emotional labor in body-related services, which scholar Millian Kang calls “body labor.”[xvi] Beyond the physical aspects, the work requires employees to make clients feel special through “a caring demeanor” and “pleasant one-on-one conversation.” Customers often take issue with salon workers speaking in their native language, which they view as disrespectful. This expectation of nurturing emotional care combines with customers’ racial conceptions of Asian women to create the expectation for these salon workers to be “productive and docile.” This further compounds employers’ mistreatment of their workers, and when internalized by the workers, it suppresses the will to speak up against their mistreatment.

Employer Strategies for Avoiding Labor Laws

There are a number of ways that unscrupulous employers manage to skirt labor laws, from legal loopholes to simple lack of enforcement. Agencies responsible for investigating labor violations have historically been underfunded and understaffed. For example, the New York State Labor Department (tasked with investigating nail salons) had only 27 investigators covering 5,000 salons in 2014.[xvii] Most likely due to this extreme understaffing, the department didn’t proactively initiate investigations and instead only opened up cases in response to workers’ complaints. But if workers fear retaliation, how are they expected to report labor violations? New York Governor Cuomo did establish a Task Force to End Worker Exploitation in 2015,[xviii] but even when labor laws are enforced there are a number of strategies that employers have to avoid punishment.[xix] Salon owners often hide unlicensed employees from investigators. When caught, they often shut down their business and go into hiding, only to reorganize later under a new name. This is also a method used to avoid paying fees owed after employees win a civil lawsuit: employers will declare bankruptcy and sell their business to a family member who will reopen it on their behalf.[xx] It’s difficult to legally prove that this was done to avoid paying fees, so the employers can avoid legal repercussions. Another common strategy to avoid being held responsible for labor violations is to shift the court’s attention to the plaintiff’s undocumented status and away from the labor violations committed.

While undocumented workers are generally aware that they are covered by these laws, they are often skeptical that they will be protected in practice.[xxi] This is for good reason as it is next to impossible for them to successfully claim their labor rights. Significantly, Hoffman v. NLRB made undocumented workers ineligible to receive back wages, neutralizing one of the most effective deterrents of wage theft.[xxii] Without the ability to collect back wages, it becomes less meaningful to require employers to comply with minimum wage laws.

It is also wholly inadequate for federal agencies to rely on responding to workers’ complaints rather than proactively investigating businesses. Undocumented workers are particularly vulnerable to employer retaliation in the form of unlawful firing and reporting to ICE. If an employee depends on their income for survival and/or to support families, which is usually the case, the cost of losing their job or getting deported is too great. This dissuades them from speaking up about labor violations or reporting them to the authorities. It doesn’t help that the fines associated with hiring undocumented workers “can usually be whittled down,”[xxiii] and it can be difficult to prove that an employer knowingly hired a worker with fake work authorization papers.

Cultural Barriers to Labor Rights

In addition to these systemic barriers to claiming labor rights, there are also social/cultural contributors to this exploitation that specifically affect Asian American communities. One of these contributors is the previously discussed model minority myth. It may seem as if the very existence of undocumented Asian Americans contradicts this myth, but the myth also posits that Asian Americans are hard-working people who do not complain and expect little reward.[xxiv] This leads employers to expect their Asian American employees to not demand higher wages.[xxv] That expectation is often met particularly when the workers internalize this myth and especially for undocumented ones who fear retaliation for speaking up.

The suppressive effects of the model minority myth are compounded with the work culture present in many of these workplaces. Because these Asian restaurants and nail salons are usually owned by co-ethnic community members, they are able to create a sense of ethnic solidarity that makes employees more willing to accept their exploitation.[xxvi] This narrative portrays the business owners as fellow ethnic community members who rose above adversity to become successful job-creators and that the underpaid employees may one day become owners themselves if they “work hard and do not complain.”[xxvii] This creates a sense of betrayal if the employees sue their employer over labor violations.

This almost familial dynamic between employer and employee preserves the imbalance of power between them, as examined in a 2012 case study of a Korean American restaurant that predominantly employed undocumented staff.[xxviii] The owner of the restaurant cultivated a “sense of fictive kinship” among the staff by taking on a matriarchal role, even instructing her employees to call her “mama.” This allowed her to get away with even greater labor violations than what she would have otherwise been able to. For example, she withheld money from employees’ paychecks to personally invest in the stock market, allegedly to teach them how to save money. However, the returns on these investments never made it to the employees, constituting simple wage theft. This is reminiscent of a running joke[xxix] among Asian diasporic youths, consisting of complaints that their parents would “hold onto” the money from their red envelopes given to children on the New Year, but never give that money back. The employees were not allowed to accept tips; like an overbearing parent keeping track of their children, the owner surveilled employees to make sure they didn’t take cash tips left on tables and deliberately furnished the restaurant in a way that allowed her to keep an eye on as many of them as possible. The owner admitted in the study to deliberately hiring undocumented workers so that she could pay them less, which she viewed as essential for the survival of her business.

Policy Solutions

The exploitation of undocumented workers is a long-running issue, for which many remedies have been prescribed. These include legal protections against employer retaliation, holding know-your-rights workshops to educate workers on labor laws, and expanding the U Visa system. These legal protections should be strengthened to close loopholes and facilitate unionization, the know-your-rights workshops should be held widely and made available in the 40+ Asian American and Pacific Islander (AAPI) languages, and the U Visa system should be extended to cover victims of labor violations and its annual cap should be increased.

Stronger Labor Protections against Retaliation

Federal laws protecting against employer retaliation suffer from a number of loopholes that leave workers vulnerable to termination and/or deportation. They neither address retaliation by a “friend or agent of the employer,”[xxx] nor do they cover retaliation in anticipation of worker organization. Specifically, sections 7 and 8 of the National Labor Relations Act (NLRA) protect the right to unionization and prohibit reprisal against exercising those rights. For a claim to be considered under this law, the plaintiff must demonstrate having participated in “protected activity” prior to the “adverse treatment,” and they must prove both that the employer knew about said protected activity and that it motivated said adverse treatment.[xxxi] This is a high threshold for employees to meet, and it means that employer retaliation does not fall under the scope of the NLRA if it happens in anticipation of employee actions.

Policies protecting workers from retaliatory reports to ICE are similarly deficient. According to a 2016 Memorandum of Understanding (MOU) between the Departments of Labor (DOL) and Homeland Security (DHS), ICE must agree to “not conduct worksite enforcement activities” during a labor agency’s investigation and ICE must also internally evaluate tips/reports at workplaces to ensure they are not meant to retaliate as part of a labor dispute.[xxxii] However, this MOU does not cover instances in which a workplace is not under investigation by a labor agency, and because it allows ICE to internally evaluate said tips/reports, it is difficult to hold ICE accountable for the accuracy of these evaluations. These are easily exploited loopholes, rendering these protections largely ineffective.

However, it is possible to close these loopholes, as demonstrated by California, which passed a series of laws in 2013.[xxxiii] Specifically, California Labor Code Section 98.6 broadens the definition of employer retaliation to include actions responding to oral or written complaints of missing wages. Section 1102.5 protects whistleblowers from retaliation “by any person acting on behalf of the employer,” and includes public testimony as a protected action. Section 494.6 of the California Business and Professions Code suspends or revokes the business license of any employer who reports/threatens to report employees’ immigration status or commits another “unfair immigration-related practice” as a form of retaliation. Protected activity includes “filing a complaint, informing another person about workplace rights, or seeking information to see if an employer is in compliance with state or local workplace laws.” In fact, threatening to report immigration status “may constitute criminal extortion” under California Penal Code Section 519.

Following and expanding upon California’s example, the legal loopholes in anti-retaliation laws should be closed nationwide. This can be achieved through expanding the definition of protected activity and lowering the threshold employees are required to meet to make a claim under the NLRA, expanding the definition of retaliation to explicitly include immigration-related actions like threatening to report immigration status, and strengthening and codifying language from the 2016 DOL-DHS MOU to legally prohibit ICE from conducting workplace enforcement activities during a labor dispute and creating a mechanism for another federal agency to audit ICE’s tip/report evaluation process. Because states have historically been able to pass labor protections that go beyond federal mandates such as passing minimum wage laws that go beyond the federal level,[xxxiv] it is clear that states can more easily take the lead in closing these loopholes. Federal action may take longer, but Congress should then follow the states’ leads in introducing these strengthened regulations. These laws should protect against retaliation by someone else on behalf of the employer, anticipatory retaliation, and retaliation in the form of reporting employees to ICE. Regarding prevention of reporting to ICE, the penalties on employers for hiring undocumented individuals should be increased to dissuade them from reporting employees or welcoming ICE raids.

Know-Your-Rights Workshops and Unionization

Nonprofit organizations and advocacy groups provide a valuable asset to workers in the form of know-your-rights workshops, which educate employees on the compensation, hours and safety standards they are entitled to, as well as their right to organize. However, while it is important for employees to understand their labor rights through know-your-rights workshops, they cannot materially change employees’ ability to claim those rights. Know-your-rights workshops can instead provide other benefits including a sense of predictability, confidence, and community.[xxxv] In linguistically diverse Asian American communities, these workshops should be made available in as many languages as possible. When combined with other policy reforms that actually do increase the practicality of claiming rights, these workshops can serve an invaluable function in reducing alienation felt between workers and giving them a feeling of control over their situations. These benefits are key for facilitating unionization in these workplaces. Governments must secure appropriations to fund the organizations holding these workshops. They must be provided in as many languages as possible, because the linguistic diversity of 40 languages present among AAPI populations[xxxvi] presents an obstacle to implementing these workshops and organizing workers into unions.[xxxvii]

Even in cases where the majority of the workers speak the same language, such as many nail salons, there are other barriers to undocumented workers exercising their rights. It is common practice among nail salons to improperly categorize their employees as “independent contractors,”[xxxviii] making them ineligible for union membership. Because the employees are forced to sign contracts that affirm their “independent contractor” status, it is difficult to convert their status into regular employees. For this reason, unions may not be as effective for nail salon workers as they are for predominantly Latino American car washes, in which the employees are considered to be workers, allowing them to unionize.[xxxix] There must therefore be other options available for workers to advocate for their rights.

Expansion of U Visas

Workplace exploitation of undocumented Asian Americans deeply intersects with immigration issues. It cannot be fully solved without providing a reasonable path to proper work authorization and/or immigration status. Barring a complete overhaul of the US immigration system, there is still a way to provide options for obtaining work authorization through the U Visa. These visas should be given to undocumented workers facing workplace exploitation, and to better cover the number of large number of undocumented workers that have faced labor rights violations, the annual number of U Visas and temporary work authorizations given should be increased. U Visas are non-immigrant visas given to victims of crimes, usually domestic violence or sexual assault. The visas are intended to encourage cooperation with law enforcement from individuals who might otherwise avoid them for fear of deportation, in order to investigate and prosecute crimes against them. U Visa recipients may apply for a Green Card after continuously staying in the United States for three years.[xl] There have been attempts to expand the list of crimes covered by U Visas to include workplace violations and employer retaliation, in the form of a bill called the “Protecting Our Workers from Exploitation and Retaliation (POWER) Act,”[xli] which died in 2018 and was reintroduced in November 2019. By allowing exploited workers to lawfully stay and work in the country, this U Visa expansion would empower undocumented immigrants to file workplace claims.

One possible setback is the sheer volume of workplace violations occurring every year. There is a strict cap of 10,000 U Visas per year. Considering that victims of workplace violations would be competing for these slots with victims of all other crimes, this limit is far too low. To illustrate the scope of the problem, an estimated 17% of all low-wage workers experience minimum wage violations, affecting 2.4 million of workers in the 10 most populous states.[xlii] It is unclear exactly how many are undocumented, but it can be estimated that the number is higher than 10,000. Every applicant over 10,000 is placed on a waiting list along with their derivative petitioners (family members), which allows them to temporarily remain in the country. However, being on this waiting list does not automatically enable petitioners to legally work,[xliii] leaving applicants with few good choices for supporting themselves and their families. This low annual cap and these weaknesses in the waiting list system reduce the impact of the POWER Act.[xliv] This is why it should be accompanied by a substantial increase to the U Visa cap and provisions to guarantee temporary work status for petitioners and their families while on the waiting list. This would require greater funding for the United States Citizenship and Immigration Services (USCIS) to pay for the additional staff required to process these new applications.


Undocumented low-wage Asian Americans are structurally excluded from their labor rights and their opportunities for upward mobility. We must not obscure their struggles by focusing only on the most privileged Asian American subgroups, thereby embracing the status of the model minority. We should instead measure our communities’ progress by how we and society at large treat the most vulnerable and marginalized among us. To fulfill the promise of equal opportunity we must implement bold measures to rectify their situation, including strengthening anti-retaliation protections, educating all language groups on their labor rights, and radically expanding the U Visa program to protect potential victims of labor violations.


[i] Paul Wong, Chienping Faith Lai and Tieming Lin, “Asian Americans as a Model Minority: Self-Perceptions and Perceptions by Other Racial Groups,”  Sociological Perspectives 41, no. 1 (1998): 95-118.

[ii] Asian Americans Advancing Justice – AAJC and Advancing Justice – Los Angeles. Inside the Numbers: How Immigration Shapes Asian American and Pacific Islander Communities (June 2019), 47.

[iii] Jeffrey Passel and D/Vera Cohn, “2. Occupations of Unauthorized Immigrant Workers,” Size of U.S. Unauthorized Immigrant Workforce Stable After the Great Recession, Pew Research Center, November 3rd, 2016.

[iv] Asian Americans Advancing Justice, supra note 2, at 17.

[v] Nicole Taykhman, “Defying Silence: Immigrant Women Workers, Wage Theft, and Anti-Retaliation Policy in the States,” Columbia Journal of Gender and Law 32, no. 1 (2016): 100.

[vi] Mohar Ray, “Undocumented Asian American Workers and State Wage Laws in the Aftermath of Hoffman Plastic Compounds,” Asian American Law Journal 13, no. 1 (2006): 91.

[vii] David Cooper and Teresa Kroeger, “Employers Steal Billions From Workers’ Paychecks Each Year,” Economic Policy Institute, May 10th, 2017.

[viii] Shannon Gleeson, “Implementing the Legal Rights of Undocumented Workers,” In Conflicting Commitments: The Politics of Enforcing Immigrant Worker Rights in San Jose and Houston. Ithaca: Cornell University Press, 2012, 66-67.

[ix] Frank Shyong, “The Workers Who Make Korean Barbecue Possible Deserve Better,” LA Times (Los Angeles, CA), July 29th, 2019.

[x] KIWA, “A Just Economy For All,” N.D.

[xi] DRUM – Desis Rising Up & Moving and the Community Development Project of the Urban Justice Center, Workers’ Rights are Human Rights: South Asian Immigrant Workers in New York City (New York, NY), July 2012, 9.

[xii] Nicole Taykhman, supra note 5, at 103.

[xiii] Sarah Maslin Nir, “The Price of Nice Nails,” New York Times (New York, NY), May 7th, 2015.

[xiv] Nicole Taykhman, supra note 5, at 97.

[xv] Sarah Maslin Nir, supra note 13.

[xvi] Millian Kang, “The Managed Hand: The Commercialization of Bodies and Emotions in Korean Immigrant–Owned Nail Salons,” Gender and Society 17, no. 6 (2003): 820-839.

[xvii] Dat Tommy Phan, “Unpretty Nails: Addressing Workers Rights Violation within the Vietnamese Nail Salon Industry,” Asian Pacific American Law Journal 21, no. 1 (2016): 88.

[xviii] Nicole Taykhman, supra note 5, at 99.

[xix] Dat Tommy Phan, supra note 17, at 90-91.

[xx] Nicole Taykhman, supra note 5, at 114.

[xxi] Kathleen Tipler and Alice Gates, “Rights Education Without Rights? Rights Workshops and Undocumented Immigrants in the U.S.,” Journal of Ethnic and Migration Studies, DOI: 10.1080/1369183X.2019.1591271, March 11th, 2019, 12.

[xxii] Mohar Ray, supra note 6, at 91.

[xxiii] Reema Khrais, “Federal Immigration Agents Say There Will Be More Workplace Raids Like 7-Eleven,” Marketplace (Los Angeles, CA), Jan. 25th, 2018.

[xxiv] Paul Wong et al, supra note 1.

[xxv] Mohar Ray, supra note 6, at 94.

[xxvi] Ibid.

[xxvii] Dat Tommy Phan, supra note 17, at 91.

[xxviii] Esther Chihye Kim, “Call Me Mama”: An Ethnographic Portrait of an Employer of Undocumented Workers,” The Annals of the American Academy of Political and Social Science 642 (July 2012): 170-185.


[xxx] Nicole Taykhman, supra note 5, at 123.

[xxxi] Charlotte Alexander, “Anticipatory Retaliation, Threats, and the Silencing of the Brown Collar Workforce,” American Business Law Journal 50 (2013), N.P.

[xxxii] National Employment Law Project (NELP), “Immigration and Labor Enforcement in the Workplace: The Revised Labor Agency-DHS Memorandum of Understanding,” May 23rd, 2016.

[xxxiii] National Employment Law Project (NELP), “California’s New Worker Protections Against Retaliation,” October 2013.

[xxxiv] Nicole Taykhman, supra note 5, at 132.

[xxxv] Kathleen Tipler and Alice Gates, supra note 21, at 8-10.

[xxxvi] Karen Blacher, “Asian Americans and Pacific Islanders in the United States Aged 55 Years and Older: Population, Nativity, and Language,” National Asian Pacific Center on Aging (NAPCA), Data Brief 1, No. 1 (September 2013).

[xxxvii] Mohar Ray, supra note 6, at 96.

[xxxviii] Dat Tommy Phan, supra note 17, at 94.

[xxxix] Ibid, at 92-93.

[xl] U.S. Citizenship and Immigration Services (USCIS), “Victims of Criminal Activity: U Nonimmigrant Status,” N.D., last accessed May 27th, 2020.

[xli] National Immigration Law Center (NILC), “The POWER Act,” November 2019.

[xlii] David Cooper and Teresa Kroeger, supra note 7.

[xliii] USCIS, supra note 40.

[xliv] Nicole Taykhman, supra note 5, at 125.