Berkeley Journal of Employment and Labor Law
Ming H. Chen, Where You Stand Depends on Where You Sit: Bureaucratic Politics in Federal Workplace Agencies Serving Undocumented Workers, 33 Berkeley J. Emp. & Lab. L. 227 (2012), available at https://scholar.law.colorado.edu/faculty-articles/138.
This Article integrates social science theory about immigrant incorporation and administrative agencies with empirical data about immigrant-serving federal workplace agencies to illuminate the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants' rights can be protected when workplace agencies incorporate immigrants into labor law enforcement in accordance with the agencies' professional ethos and organizational mandates. Building on Miles' Law that "where you stand depends on where you sit," this Article argues that agencies exercise discretion in the face of contested law and in contravention to a political climate hostile to undocumented immigrants for the purpose of protecting workers. Consequently, strongly pro-immigrant policies in the political branches are not necessary for the recovery of immigrants' rights. Instead, entrenched institutional commitments to professional ethics and recognition of organizational mandates constrain politics resulting in a hybrid form of bureaucratic politics. Empirical evidence of regulatory responses to immigrant workers after Hoffman Plastic v. NLRB in three federal agencies serve as comparative case studies: the U.S. Department of Labor, the U.S. Equal Employment Opportunity Commission, and the National Labor Relations Board.
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