Guest Post: Criminal Employment Law

Ben Levin is Climenko Fellow and Lecturer on Law at Harvard Law School.

What role do private employers have to play in the criminal justice system? And, what does employment law doctrine have to do with mass incarceration?

In Criminal Employment Law (forthcoming in the Cardozo Law Review), I answer these questions.  I argue that existing employment law doctrines and institutions extend the effects of criminal punishment and make private employers complicit in the continued marginalization of people with criminal records.

In the post that follows, I offer a brief overview of the article’s central claims and the ways that they should frame debates about ban the box and reentry reforms.

Criminal Employment Law focuses on the continuing problem of employment for people with criminal records and asks how the law on the books (coupled with cultural attitudes) encourages employers to steer clear of workers and job applicants with any criminal history.

It’s well-documented that people with criminal records (particularly people of color with criminal records) have a tough time finding work.  It’s also well-documented that finding stable employment significantly reduces the likelihood of recidivism.

As a result, employment obstacles for people with criminal records have been a target for reformers: just this week, a bipartisan Congressional coalition introduced ban-the-box legislation that would bar federal employers from asking about criminal records on initial applications.

Ban the box activism and legal scholarship on recidivism often treat discrimination against people with criminal records as the product of social and cultural prejudice – a lingering resistance to rehabilitative ideals and a belief that “once a criminal, always a criminal.”

Yet prejudice or fear may not be the only explanation for employers’ resistance.  A set of legal doctrines and institutions – what I call “criminal employment law” – may well shape or affect employer decision making.

There are many statutes and regulations that restrict the employment of people with criminal records.  A growing literature addresses collateral consequences of conviction (and arrest) – hardships experienced by individuals with criminal records.  But most scholars have focused on formal collateral consequences – hardships explicitly proscribed by statute (e.g., immigration, public housing bans).  I’m more concerned here with informal collateral consequences – these are consequences that depend on that broader statutory framework, but are ostensibly the province of “private” law and private legal orderings.

These consequences don’t invoke state power explicitly, but they have significant effects on individuals with criminal records and help define the role of employers in dealing with the criminal justice system.

I’ll briefly describe two examples: (1) tort doctrines of negligent hiring and negligent retention, which expose employers to potential liability for employing workers with criminal records and (2) private employee conduct policies that regulate criminal behavior away from the workplace.

First, negligent hiring.  Imagine a cable company hires someone with a criminal record.  The cable repair person visits a house as a part of her job and subsequently attacks a homeowner.  The homeowner might sue under a negligent hiring theory, claiming that the past criminal conviction demonstrated the attacker’s “propensity” for violence or criminal conduct.  (A negligent retention suit would follow the same logic if the employer had continued to employ the worker after her conviction.)

Under this theory, some people have a propensity to commit bad acts, a criminal record is a proxy for that propensity, and employers should be liable for employing those individuals.

So, tort doctrine is telling employers that they stand to lose if they hire individuals with criminal records.  Ban-the-box laws, tax incentives, or employer pledges might suggest some broader policy preference for second chances, but these tort doctrines explicitly reject rehabilitation.

Employee conduct policies create a similar dynamic in which employers function to weed out “criminal elements” in the workforce.  These conduct policies or handbooks are private agreements between employers and employees that many jurisdictions enforce as contracts.

The policies proscribe a range of conduct, much of which is unremarkable or clearly related to work (e.g., adhering to safety rules or not stealing from employers), but sometimes they also restrict conduct away from work (e.g., not getting arrested at any time).

In recent years, employee conduct policies have received the most attention in professional sports, where leagues have responded to negative publicity about domestic violence, drugs, and alcohol, by adopting strict policies that allow management to discipline players for behavior away from the court or stadium.

These policies serve as statements – at least aspirational statements – that employers view non-workplace criminal conduct (or alleged criminal conduct) as the employer’s business.  And, significantly, public outcry about perceived failure to discipline athletes (see, e.g., Ray Rice) indicates that many viewers and consumers believe that employers can and should be responsible for exacting punishment, whether instead of or in addition to the criminal justice system.

Of course, the two examples differ – tort doctrine comes from the state, whereas the conduct policies are drafted by employers (with employee input in some unionized shops).  Nevertheless, they both reflect a focus on non-workplace misconduct by workers and a belief that employers can or should be monitoring their workers’ interactions with the criminal justice system.

Which brings us to the broader takeaways for both the criminal justice system and the employment relationship.

I’ll address the criminal justice angle first, but, given OnLabor’s audience, I’ll be brief (for more, read the article; you’ll like it).

My claim is that criminal employment law privatizes the effects of punishment.

It relies on largely unaccountable actors who operate outside of the rules of the criminal justice system and the constitutional checks that govern criminal process.

If a job applicant with a criminal record can’t find work, her hardships depend on third parties and aren’t necessarily predictable or proportional to her offense.

Which leads us to criminal employment law’s lessons for employment law and the employment relationship.  Where criminal employment law represents a privatization of criminal law, it also represents a publicization of private employment.  (Check out the fantastic work by Noah Zatz and the UCLA Institute for Research on Labor and Employment on which I’m drawing.)

Employment in the United States has both private and public elements.

In many contexts, it’s treated as decidedly private – the result of a bargain between private parties.  Courts routinely defer to business interests and the private concerns and priorities of employers.

But, post New Deal, courts and legislatures have recognized the public significance of employment – this approach has resulted in a range of statutory employment laws, but also in the decision to tether public benefits to private employment.

Criminal employment law further strengthens this public function – employers are not only implicated in the construction of the social safety net and the provision of public benefits.  They are also implicated in the performance of public rituals of punishment, shaming, and ostracism.

But criminal employment law fails to provide checks on the private powers of employers.  They may serve public interests, but private employers are not state actors, and they remain insulated via employment law doctrines by a deference to private business interests.

By requiring employers to take on this function, criminal employment law invites decisions based on employers’ individual values and incentives (e.g., efficiency, profitability, or PR)  – values and incentives that may not match those of the public at large and may be far removed from the values that we tell ourselves that the criminal justice system represents.

Further, by inserting employers in the private lives of their employees, criminal employment law helps redefine employment and the social function of employers.

As others have emphasized, employers increasingly are taking advantage of technology to monitor workers.  And, the vision of employer responsibility embodied in criminal employment law suggests a totalizing conception of employment and employer control.

In a world where the employer and the state exist is symbiosis to punish workers and manage raced and classed “dangerous populations,” ban-the-box legislation is a great first step.  But it’s important to recognize that the problems that it addresses are much bigger and require bigger picture legal and social reforms.