Between Guardian and Punisher : The Role of the German Inspectorate Finanzkontrolle Schwarzarbeit for Migrant Workers

Abstract: Many in Germany argue that the minimum wage and other protective provisions for migrant workers will only be effective when workplace inspections by the enforcement body "Finanzkontrolle Schwarzarbeit" (FKS) are stepped up. For this reason, a novel cooperation agreement between the FKS and migrant workers' counseling offices has been signed, in June 2021. This step is informed by the FKS' public image of being a guardian of the minimum wage and of victims of labor exploitation. The hypothesis of this thesis is that the argument of more inspections lead to less exploitation is oversimplified. Therefore, it explores the role that the FKS has for migrant workers in more detail by using regime theory and a methodological approach informed by ethnographic border regime analysis. An analysis of the FKS' formal duties codified in the law reveals its ambivalent character. Especially the concept of unlawful employment serves as an umbrella term that conflates protective as well as punitive provisions for migrant workers. In eleven qualitative interviews, FKS officers and migrant workers' counselors mostly rejected the FKS' image as a "workers' protection squad". Instead, they think that the FKS only served the interests of the state. As a consequence, exploited workers have no immediate benefit from FKS inspections, and sometimes even experience heavy detriments like the loss of their job, housing, or unpaid wages. The most severe consequences, like expulsions or deportations, result from violations of the Residence Act. For these reasons, counselors reacted differently to the new cooperation agreement. While most counselors have strong reservations or even refuse to work with law enforcement bodies, others have found ways to cooperate without putting their clients at risk. For such successful cooperation it is crucial that FKS officers take workers' and counselors' needs seriously and adapt their routines and protocols in order to instill trust. Under the current legal and institutional configuration, increasing the number of FKS inspections is not pertinent to combat the exploitation of migrant workers. The argument that vulnerabilities of migrant workers emerge from a lack of enforcement is blinding out the fact that the enforcement of labor law itself produces vulnerabilities. Institutions tasked with the enforcement of protective provisions, must not be tasked with enforcing punitive provisions against migrant workers. Instead, workers need to be given an active role in the enforcement of their own rights.