Labour inspectors as street-level bureaucrats

Labour inspectors can be considered to be street-level bureaucrats (Fineman Reference Fineman1998). Using Lipsky’s words, those who work within control and vigilance agencies, as street-level bureaucrats, “decide who to sanction, determining the nature and quality of the sanction” (Lipsky Reference Lipsky1980, 13). In fact, labour inspectors have to implement personal solutions when dealing with work irregularities, whereby they are called on to decide whether, and in what way, to gain access to the workplace for inspection purposes, and to find a solution that is to the worker’s benefit. Legislative, organisational and regulatory guidelines are not always formulated in a clear, unambiguous way, and they are implemented through a process of adaptation, redefinition and reinterpretation of the law on behalf of the actors (Saruis Reference Saruis2015).

Piore and Schrank (Reference Piore and Schrank2006, Reference Piore and Schrank2008) try to assess the role of inspectors in ensuring decent working conditions within two different institutional contexts – Latin America and the United States – and investigate the relationship between business practices and “decent work” standards. According to them, the “Latin model” is more adaptable than the US one, because it gives inspectors greater discretionary power. Latin labour inspectors are defined as an “assault troop” (Piore and Schrank Reference Piore and Schrank2008, 20), and their job and goals are defined by practices embedded in the culture of the inspectorate body and passed on from one generation to the next.

Other studies (Nielsen Reference Nielsen2007; Loyens Reference Loyens, Hupe, Hill and Buffat2016) investigate the way in which personal and contextual aspects may influence labour inspectors’ decisions regarding how cases of forced labour can be resolved. These ethnographic studies show how the perception of severity of certain situations determines priorities when searching for solutions. This conclusion is reached by identifying different coping strategies. The solution of a case is not solely motivated by the desire to obtain the right treatment for the victim of labour abuse, but also by the need to achieve personal “outgrowth” inasmuch as the number of arrests and resolved cases constitutes an indicator of the quality of an inspector’s performance.

Although scholars generally agree that inspectors have considerable discretionary power, there is no one definition of discretion (Hawkins Reference Hawkins1984; Gilboy Reference Gilboy1992; Kluin Reference Kluin2014). On a general level, discretion includes all aspects of an inspection process: when to visit, how carefully evidence is to be collected, how to interact with witnesses and employers (Goosensen and Van der Voort Reference Goosensen and Voort van der2009; Goosensen and Van Bueren Reference Goosensen and Bueren2011; Kluin Reference Kluin2014). However, there is a further discretionary power concerning the penalty to be applied (Wiering Reference Wiering, Bakker and van Waarden1999; May and Wood Reference May and Wood2003; Lehmann Nielsen Reference Lehmann Nielsen2006). Davis (Reference Davis1969, 4) tries to provide a standard definition, arguing that “a public officer has discretion wherever the effective limits of his power leave him free to make a choice between possible courses of action and inaction”.

A substantial body of research distinguishes two main interpretative strands. The first one sees discretion as the degree of freedom that the legislator grants to these workers. Alternatively, the same term is used to define the way in which the granted freedom is effectively used (Hupe et al. Reference Hupe, Hill and Buffat2015).

Discretion leaves spaces open for the making of decisions. Street-level bureaucrats use discretion mainly to give meaning to certain policy standards and to establish a balance between the requests addressed to them and the resources actually available (Lipsky Reference Lipsky1980; Evans and Harris Reference Evans and Harris2004; Hupe and Hill Reference Hupe and Hill2007; Brodkin and Marston Reference Brodkin and Marston2013; Hupe and Buffat Reference Hupe and Buffat2014).

Discretion can be defined as: (i) discretion within the framework of laws and procedures; (ii) discretion among the laws and procedures to be applied; (iii) discretion beyond the boundaries of laws and procedures.

Discretion is operated within the law because street-level bureaucrats adapt norms to concrete situations. When the law is unclear and/or contradictory, street-level bureaucrats interpret it by acting among the law. In the third case, when discretion means acting beyond the confines of the law, it consists in a violation of formal rules (Ham and Hill Reference Ham and Hill1986; Kazepov and Barberis Reference Kazepov, Barberis, Marx and Nelson2012).

This article focuses on the way in which inspectors implement their discretionary power within a particular institutional field – that of paid domestic work – where the private home constitutes the workplace. An organisational field is defined as “the set of organisations which, taken together, constitute a recognised area of institutional life” (DiMaggio and Powell Reference DiMaggio and Powell1983, 91). According to this definition, organisational fields are constituted by actors who interact frequently and who establish socially acceptable standards of actions. Organisational fields include companies, state authorities, associations, unions, professional bodies, knowledge centres, mass media and all those actors who, through their interaction, produce institutional logics. Such logics derive from routinised actions that are institutionalised. They regulate actors’ activity by establishing criteria of legitimacy (Geertz Reference Geertz1982; DiMaggio and Powell Reference DiMaggio and Powell1983), and ultimately establish the right way to act. The similarity between the parts of the field is given by the effect of isomorphic pressures leading to the adoption of standardised practices and procedures (DiMaggio and Powell Reference DiMaggio and Powell1983). Powell and DiMaggio identify three types of isomorphism: coercive, mimetic and normative, which will be examined in the following paragraph.

Paid domestic work in Italy

The feminisation of migratory flows (Castles and Miller Reference Castles and Miller1993; Bettio et al. Reference Bettio, Simonazzi and Villa2006) has made it increasingly common in Europe to employ migrant women in domestic, care and cleaning activities (Anderson Reference Anderson2007). The carers, or badanti, are domestic workers assisting elderly and disabled people. With the term “cleaner” we refer to those domestic workers involved in cleaning other people’s homes (Andall Reference Andall2000).

These working activities are also considered at risk of irregularities and exploitation (FRA 2015), and are part of what Piore (Reference Piore2011) defines as the secondary labour market, consisting of precarious, poorly paid and socially penalising jobs (Ambrosini Reference Ambrosini2005).

The lack of knowledge of the local language, the need to have a job in order to obtain and maintain a valid residence permit, and in some cases the non-recognition of their qualifications make immigrants vulnerable workers. In Italy, according to INPS data,Footnote ² the composition by gender of this category shows a growing prevalence of female domestic workers (Table 1).Footnote ³

Table 1. Domestic workers in Italy by year and gender

Source: INPS, observatory on domestic workers: figures processed by the authors.

In 2017, women employed in the domestic sector constituted 88.3% of the total workforce (763,257 in absolute figures) and were of predominantly Eastern European origin (43.7% of the total).

Domestic workers are considered to constitute a vulnerable category, not only for being mostly foreign and female, but also as a consequence of the places where they work. A recent research conducted by the European Union Agency for Fundamental Rights (FRA 2015) showed how their isolation makes these workers more exposed to the risk of being exploited and being subjected to irregular working conditions. Within the domestic sphere, employment contracts are often absent or not complied with. In Italy, Law 339 was adopted in 1958 to establish a system of domestic labour regulation, and it is considered the first step towards the specific recognition of care work, which perpetually straddles the formal and informal divide, and up until 2007 was without any national collective agreement, unlike other areas of employment in Italy (Sarti Reference Sarti2010). The aforesaid Law established: eight occupational levels, based on a worker’s qualifications; working hours standardsFootnote ⁴ ; resting requirements and the possibility of changing shifts.

Although the goal of these measures was to extend domestic workers’ social protection, there is still a gap between domestic work and other areas of employment. Furthermore, the high degree of informality that characterises both the workplace and working relationships leads many employers (families) not to apply the recently introduced national collective agreement. This means that a large part of domestic work is not declared for tax and social insurance purposes (Sarti Reference Sarti2010).

Data collection and fieldwork: the institutional context

Data were collected through the adoption of an ethnographic method permitting continued observation and consisting in the drafting of field notes (Fassin Reference Fassin2013). During the observation period, the analysis focused on labour inspectors’ ways of dealing with domestic work irregularities. Observations were recorded inside a local office of the Italian Labour Inspectorate, for a period of nine months starting from February 2017.Footnote ⁵

The data collected by means of participant observation were transcribed from the field notes taken.

During the participant observation period, 41 cases of interaction between labour inspectors and domestic workers were observed. Thirty-two of these cases involved labour inspectors and carers, while nine involved labour inspectors and cleaners. All domestic workers complain of employment irregularities.

Twenty-eight cases of interaction were observed during dispute settlement procedures before the inspection. This consists of a specific procedure provided for by Italian law to settle wage-related and insurance contribution-related employment disputes. Twelve cases were observed at a complaints desk, where workers submit complaints regarding their irregular employment situation (Table 2).

Table 2. Observed interaction between labour inspectors and domestic workers, and the discretionary spaces concerned

Source: Authors’ field notes.

Observing labour inspectors’ decisionmaking from their perspective offers the opportunity to focus on ordinary events in natural settings and to learn about the inspectors’ strategies and motivations. Ethnography, furthermore, permits an analysis of discourseFootnote ⁶ both during formal interaction and conducted in informal settings, thus bringing out the relational dynamics concerned.

Labour inspectors were observed in three “discretionary spaces”: (1) the complaints desk, (2) settlement proceedings before a single judge,Footnote ⁷ (3) office work during the investigative phase. The complaints desk comes into play when a worker complains about his/her irregular employment situation. In such cases, the labour inspector may decide to proceed with an investigation, or look for an administrative solution (by means of the dispute settlement facility), or not open the case at all. The dispute settlement facility represents a specific procedure provided for by Italian law no. 124/2004 and is designed for the purpose of settling wage-related and insurance contribution-related employment disputes. If no agreement is reached between the worker and employer, then an inspection has to be carried out. In such cases, the labour inspector is an impartial third party who, on the basis of workers’ statements submitted to him/her, aims to find an administrative solution that suits both parties. If the dispute is settled at this stage, the employer will not be subject to any penalty. Labour inspectors use their discretionary powers to encourage the parties to come to a financial agreement, or to discourage domestic workers from accepting the conciliatory procedure. During the investigative phase, the labour inspectors may decide how to collect information on the case, and whether to proceed with a workplace inspection or not.

What happens, however, when the workplace is the home? Are labour inspectors to interpret the home as an “inviolable” private sphere in accordance with Article 14 of the Italian Constitution?

Which institutional factors shape labour inspectors’ decisionmaking?

Dilemmas arise mainly as a result of the fact that labour inspectors cannot always launch an investigation in every single case: time, resources and staff are not sufficient to be able to deal with all complaints received. Furthermore, not all cases can be dealt with through a reconciliation procedure: first of all, because the success of the dispute settlement facility depends on the existence of an agreement between parties involved, and in the absence of such an agreement a mandatory investigation should be launched; secondly, not all disputes can be resolved through a financial transaction. Indeed, according to Article 2112 of the Italian Civil Code, a violation of human rights such as the refusal to grant workers a certain number of hours of rest each day, or the failure to pay a minimum wage, cannot be settled by the offer of financial compensation. However, the dispute settlement facility is often the preferred method of resolving these violations.

Finally, the labour inspectors’ operations have to comply with the standards established by the central authority.

Based on a multi-level approach, this analysis examines street-level bureaucrats’ discretionary actions as influenced by the institutional logic of the organisational field in which they operate (Garrow and Grusky Reference Garrow and Grusky2012; Rice Reference Rice2012; Thornton and Ocasio Reference Thornton, Ocasio, Greenwood, Oliver, Lawrence and Meyer2017). As mentioned before, an organisational field includes all those actors (institutional and non-institutional) whose role it is to establish socially acceptable standards of action (DiMaggio and Powell Reference DiMaggio and Powell1983). To deal with the dilemma at the centre of this article, labour inspectors make their decisions within the organisational field of domestic workplace controls. There are many different actors operating within this organisational field. The state, through the Ministry of Labour and Social Policies, establishes national guidelines in the field of labour protection which define priorities in terms of actions and controls. Institutional actors operating within the field also include control agencies and inspection bodies, such as the National Labour Inspectorate, the National Social Insurance Institute (INPS), the National Institute for Insurance against Accidents at Work (INAIL), and the Carabinieri’s Employment Unit. The field also comprises labour inspectors, domestic workers, employers, trade unions, journalists and the public.

The organisational field of domestic workplace control is characterised by a move towards the establishment of standardised operational procedures and systems of accountability that are the result of organisational change aimed at replacing “the alleged inefficiency of hierarchical bureaucracy with the alleged efficiency of the markets” (Power Reference Power1997, 61). The concept that best captures the process of homogenisation is isomorphism (DiMaggio and Powell Reference DiMaggio and Powell1983). Thus, the “managerialisation” of domestic workplace control establishes isomorphic pressures that lead to the adoption of standardised practices and procedures based on evaluation, control and performance criteria (Borghi and Rizza Reference Borghi and Rizza2006).

These isomorphic pressures generate a change that leads the members of an organisational field to adhere to the established institutional logic. Powell and DiMaggio identify three types of isomorphism: coercive, mimetic and normative. In the first case, the members of an organisational field are subjected to external pressures (e.g. legal constraints) that force them to conform, and these stem from the problem of legitimacy. When isomorphism is mimetic, situations of uncertainty are dealt with by imitating the identified solutions. Isomorphism is normative when professions define their respective working conditions and methods and establish the cognitive base and legitimation for their occupational autonomy: in this case, changing practices are not generated by uncertainty, but by an awareness of their alleged superiority (Bonazzi Reference Bonazzi2002).

Nevertheless, street-level bureaucrats continue to use their discretionary power of agency and to filter the influence exerted by the organisational field (Garrow and Grusky Reference Garrow and Grusky2012). The present analysis tries to unveil the interplay between institutional pressures, on the one hand, and the discretionary power of street-level bureaucrats, on the other.

Principal findings: isomorphic pressures and domestic work irregularities

In 29 of the 41 observed cases of interaction, the home was interpreted as a private place and, for this reason, was deemed inviolable. Furthermore, labour inspectors who see the home as a workplace have not always decided to process the case through an inspection.

The aforementioned dispute settlement procedure is provided for by Italian Legislative Decree no. 124/2004, and is designed to provide an administrative solution to cases of employment irregularity, mainly consisting of wage- and social insurance-related employment issues reported by workers. This facility precedes an inspection by the Labour Inspectorate, which will only be launched if no agreement is reached between the workers and employers. The labour inspector plays an impartial role, acting on the basis of employees’ statements in an attempt to find an administrative solution that suits both parties as far as possible. By resolving the dispute at this stage, an employer will avoid any consequent penalty.

In the field of domestic work irregularities, this solution is considered by most labour inspectors as “the only glimmer of hope for these women” (field note) whereby they may obtain some form of financial reimbursement at least. The decision to refer domestic work irregularities to the dispute settlement facility is the result of institutional pressure, from national and local offices, to comply with procedures in keeping with the new organisational logic imposed by the new public management approach to public administration (Ferrari Reference Ferrari2002). This may be interpreted as coercive isomorphic pressure exercised by central government, forcing inspectors to conform to defined standards (Borghi and Van Berkel Reference Borghi and Van Berkel2007) based on accountability criteria and measurable performance standards.

The spread of this procedure is also demonstrated by the data: at the local office analysed here, cases of irregularities within the domestic sector for which the investigative procedure was launched numbered 47 in 2015, but only 1 in 2016, the year in which the conciliation procedure was introduced.Footnote ⁸ Since then, conciliation has been obligatory in the case of domestic workers reporting employment irregularities to the complaints desk, regardless of the type of irregularity, thus reducing the risk of legal disputes arising regarding the interpretation of home as inviolable and private, or as a workplace.

Although Article 2113 of the Italian Civil Code states that the violation of workers’ rightsFootnote ⁹ should not be remedied by a mere economic transaction (as would be the case with the conciliation procedure), this solution has become a standardised, substantially legitimised procedure.

In addition to coercive isomorphic pressure, the institutional field is also increasingly characterised by what has been called normative isomorphism. However, in this case inspectors use their discretionary power differently. Normative isomorphic pressures stem from the harmonisation of competencies and an ever-increasing degree of professionalisation. With this in mind, membership strategies have been developed that delineate the exclusion boundary and delimitate the field of action. However, having taken different paths towards professionalisation, labour inspectors tend to adopt different approaches. Indeed, the ethnographical study highlights two different approaches to inspections when the home constitutes the workplace. More experienced inspectors tend to see the protection of workers’ rights as their main duty. Despite organisational field pressures encouraging recourse to the dispute settlement facility, inspectors with greater professional experience disagree with this method.

Experienced inspectors often refer to the number of cases they have dealt with during their long careers.

The younger inspectors, unlike the older ones, must hold a university degree. They are trained to consider the efficiency of their operations as their main goal. A labour inspector is considered efficient if he/she can solve as many cases as possible. Accountability criteria and the measurement of performance are the primary objectives for the purposes of the achievement of quantified standards. This is reflected in their way of working, which leads them to prefer the dispute settlement procedure.

Mimetic pressures operate to reduce uncertainty about the outcome of inspections, by encouraging the adoption of standardised strategies (Flood and Fennell Reference Flood and Fennell1995). As a result, there is a trend towards managing employment irregularities in the domestic sector through recourse to the conciliation procedure. Faced with the uncertain outcome of inspections, domestic workers who appeal to the complaints desk are encouraged by inspectors to follow the route of conciliation. This procedure represents the fastest way of solving such cases, although for the worker it means giving up those rights that could not be compensated by money. This trend is also affected by the strong degree of racialisation of the domestic sector, as has been pointed out by a substantial body of research carried out in Italy. The existence of stereotypes of domestic workers can influence the way in which some inspectors manage employment irregularities (Catanzaro and Colombo Reference Catanzaro and Colombo2009; Fullin and Vercelloni Reference Fullin and Vercelloni2009). This is an external pressure that has been absorbed by the organisation, becoming a routine justifying labour inspectors’ working practices. For example, the belief that Romanian workers are “cunning” and “calculating” limits the quality of interaction between labour inspectors and such workers, and reduces the time spent on such cases and the inspectors’ willingness to explain to Romanian domestic workers all the possible options available to them. These beliefs compromise the commitment of inspectors, who consequently choose the quickest, least demanding solution, thus reducing the likelihood of lengthy procedures and the uncertain outcome of any inspections.

A different approach that counters the aforementioned mimetic pressures is adopted by those inspectors who are, or who have been, employers of domestic workers themselves.

The field notes above show how direct experience of domestic workers leads inspectors to perceive these irregularities as more serious, and to being more empathic towards this type of worker.

Final considerations

This article explores how labour inspectors use their discretionary power when dealing with employment irregularities in cases where a private home constitutes the workplace. Field notes collected over nine months of participant observation have been analysed. Our findings highlight the fact that the discretionary powers that labour inspectors exercise as frontline workers (LipskyReference Lipsky1980; Caswell et al. Reference Caswell, Larsen, van Berkel, Kupka, van Berkel, Caswell, Kupka and Larsen2017) is affected by the institutional pressures embedded in the organisational field of workplace control. We have identified three forms of isomorphic pressure that induce inspectors into adopting solutions whereby reported employment irregularities are referred to the conciliation facility provided by the Labour Inspectorate. These three forms of pressure are: coercive, normative and mimetic. We have also highlighted how such pressures do not eliminate the discretionary spaces within which actors may make their decisions. We illustrate the different courses of action adopted by inspectors in addressing cases of employment irregularity. When normative isomorphism prevails, for example, most inspectors tend to refer these cases to the Labour Inspectorate’s conciliation facility, in order to resolve disputes as quickly as possible. However, other inspectors – albeit a small minority – adopt a different attitude, and by appealing to the criteria of justice and the restoration of workers’ rights, they believe that employment irregularities in the domestic sphere must be further investigated. Accordingly, normative isomorphism and the reactions of labour inspectors are the result of the interplay of different professionalisation paths. In the case of mimetic isomorphism, the conciliation option is pursued by labour inspectors – a majority – who have interiorised stereotypes of domestic workers influenced by the strong racialisation of this particular sector of the labour market. This trend results in institutional pressure for the adoption of the fastest solution, since the outcome of any inspection is invariably uncertain. The devaluation of domestic work, most of which is done by immigrant women, inhibits further investigation. Nevertheless, other inspectors who themselves employ, or have employed, domestic workers react differently to such institutional pressure, and perceive these irregularities as more serious; consequently, they believe that the conciliation procedure is not enough. By further examining these issues, this article reveals the contribution of the new institutional perspective to the street-level bureaucracy approach. First of all, it enables the complexity underlying caseworker–client interaction to be considered, thus responding to certain critics who see the street-level bureaucracy approach as “context-free” (Berman Reference Berman1978, 32). Furthermore, the combination of these two frameworks significantly contributes towards our understanding of the implementation of directives and regulations within different institutional fields.

Our research findings generate a number of other questions, and thus further research is required in order to examine frontline workers’ discretion within other areas of the labour market than the one analysed here. Moreover, in an attempt to develop the comparative analysis of street-level bureaucracy (Hupe et al. Reference Hupe, Hill and Buffat2015), labour inspectors’ discretionary powers in different countries and institutional settings could be examined in depth. Unanswered questions emerge from our research: is the standardisation of the organisational practices followed in dealing with employment irregularities a way of protecting highly discriminated workers, or does it result in a deterioration in the quality of those actions taken? How, and to what degree, does single-judge reconciliation mean a loss of rights, also when comparing domestic to non-domestic work? What are the consequences of this type of decision? Furthermore, can the number of cases that have been solved through the single-judge reconciliation procedure, compared to the number of cases solved subsequent to inspections, be quantified?