Where You Stand Depends on Where You Sit: Bureaucratic Incorporation of Immigrants in Federal Workplace Agencies

Abstract

This article integrates legal scholarship on immigrant workers with social science theory about the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants' rights can be protected when workplace agencies integrate immigrants into their law enforcement activities, in accordance with their professional ethos and without regard to personal politics. Building on the concept of bureaucratic incorporation, I argue that regulatory agencies will resist contractions of workers' rights when their staff's commitments as civil servants and lawyers clash with judicial interpretations of immigrants' rights. The implication is that strongly pro-immigrant politics are not necessary for the recovery of immigrants' rights. Instead, entrenched institutional commitments to the rule of law and legal ethics sometimes suffice. 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. Characterizing the regulatory responses to Hoffman Plastic variously as buffering, mitigating, and reconfiguring, the article contends that social science theory and empirical data about bureaucracies illuminate opportunities for understanding and protecting immigrant workers' rights missed by immigration scholars in the legal academy.