This dissertation project examines the type of legal practice that is constituted through temporary alien employment regulatory laws in the United States. Federal administrative enforcement of agricultural and emergency guestworkers' employment contracts dates to the 1940s; however, it is only since the 1990s that non-agricultural guestworkers can turn to these protections for help with employment problems. As more and more non-agricultural guestworkers enter and exit "neoliberalized workplaces" (that is, flexible labor), we see the circulation of employment protections as well as an increase in state dispute processing and mobilization of law in this area. Yet, at the same time, an employer's right to terminate is almost absolute. Unlike in previous guestworker programs, an administrative hearing is not required for an employer to fire a guestworker employee.
Under the supervision of the PI, the dissertation student will investigate how the older, temporary agricultural and emergency employment framework shapes current legal regulations of flexible labor across contemporary workplaces. Contrary to scholarship on neoliberal labor regulation, the dissertation student argues that flexible workplaces are not "unregulated corners of labor," but rather areas where the state is "rolling out" a minimalist form of enforcement over private employment contracts. Drawing upon historical sociolegal methods, the research focuses on variations in dispute processing across time and labor sectors and the kinds of claims guestworkers have filed/make against their employers. Through legal anthropological research, this dissertation examines how the power of employers shapes guestworkers' perceptions of their entitlements.
Ultimately, this research approaches an unstudied area of state regulatory development, employment law, and legal claims-making. The research provides a historical context for proposed pending guestworker policies and laws, bringing existing legal practices into the debate about legal design and workplace justice.
My research examines an unstudied policy and exceptional legal regime in US history, the law of foreign temporary work. Specifically, it unpacks the historical development and practice of what is today known as temporary alien employment law over time and across sectors, from agricultural/emergency war labor programs to the contemporary knowledge economy. Temporary alien employment law is an area of US administrative law forged at the intersection of immigration policy and employment law, and includes state regulation of workers on foreign temporary visas commonly known as H-2 and H-1. Today's administrative law in this area has historical antecedents in past wartime programs and regulations, as well as with the well-known US-Mexico "Bracero" program that endured from 1943-1964. Overall, the dissertation examines the changing plural institutional terrain enabling/regulating foreign temporary migration/work from agricultural and war emergency programs to current policies (1942-2011) (generally this entails a shift from bi-national state-state agreements/state-sponsored work contracts of foreign citizens to a deregulated framework based upon state-issuance of alien visas only). My main questions are the following: what has the shift from bi-national agreements to state-issued visas meant to the employment legal practice in foreign temporary work regulation, and to what extent does the current framework resemble the "older" agricultural/emergency legal practices? In regards to my dissertation's first question, "what has the shift from bi-national agreements to state-issued visas meant to the employment legal practice in foreign temporary work regulation", I find that the meaning of the foreign temporary work and law is conditioned upon time and sector. For example, in the past, workers were more "free" from employer dominion in the workplace, as a culture of "employment-at-will" was mitigated by state administrative power over and legal interpretation of employer terminations. On the other hand, today, workers enjoy absolute "freedom" to complain in federal law about employer practices; for, unlike in the past, state administrators will not suggest repatriation if a claim fails to be vindicated. Labor discipline has been decoupled in the state from workplace standards enforcement. Finally, in regards to my second main question, "to what extent does the current framework in the knowledge economy resemble the "older" agricultural/emergency legal practices" I find that administrators are asked to consider more cases and face more appeals from the knowledge economy than in the agricultural sector. Furthermore, I find that many of the workers' cases lose traction through the review process, suggesting that temporary alien employment law is an area of state-corporate negotiation, with a shrinking effect on workers' rights. Drawing upon past foreign temporary workplace legalities obtained through archival research and 171 unpublished contemporary (post-1990) temporary alien employment law cases (obtained through Freedom of Information Act Requests and access), my findings (intellectual merits and broader impacts of the research) speak to scholarly debates and issues in American political development, US legal history, and race/citizenship/labor/immigration studies. My dissertation also contributes to public law scholarship by examining an unstudied area of administrative law, which, at times also challenges our received wisdom of key constitutional law/labor issues in the US polity. The research also has potential to contribute to immigration reform as I look at what kind of workplace justice exists in foreign temporary employment today (a key issue in immigration program design).
