This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with criminal records and to discharge employees based on non-workplace criminal misconduct. In this way, private employers effectively operate as a branch of the criminal legal system. But private employers act without constitutional or significant structural checks. Therefore, I argue that the criminal system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment. Employment law scholars should be concerned about the role of criminal records in restricting entry into the formal labor market. And criminal law scholars should be concerned about how employment restrictions extend criminal punishment, shifting punitive authority and decision-making power to unaccountable private employers.
Introduction
The shadow of criminal law looms large over the U.S. labor market. A criminal record sharply decreases a job applicant’s likelihood of gaining employment, and employers’ refusal to hire formerly incarcerated applicants has led to a growing population of unemployed and underemployed people with criminal records.1 Every year, more than 600,000 people are released from prison, but, a year after release, over seventy-five percent of them remain jobless.2 While parole boards treat employment as a powerful guard against recidivism,3 the legal system imposes a range of structural obstacles that make it very hard for people with criminal records to find work.
The difficulty finding and keeping a job thus serves as a significant collateral consequence of the criminal justice system—a harm that accompanies criminal conviction, charge, and even arrest.4 While incarceration, probation, and other formal vehicles of punishment are explicitly designed to respond to law breaking, these formal sanctions are only one effect of conviction. As the carceral state has expanded, so too have civil consequences of conviction—consequences that have proliferated and grown more severe.5 Loss of employment opportunities (along with loss of housing, disenfranchisement, ineligibility for public benefits, and deportation) may result in greater and longer-lasting harms than the traditional forms of statutorily or judicially mandated punishment.6 These consequences have wreaked havoc in low-income communities, particularly low-income communities of color.7 Scholars have grappled with ways to reduce these collateral costs or ways to make them more transparent, so that criminal defendants might weigh them when considering guilty pleas, judges might factor them into sentencing determinations, and legislators might act to mitigate their effects.8 However, the role of private employers in this shadow criminal system remains underexplored.
This Article describes a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal system. For those with criminal records, the life-altering effects of their past run-in(s) with the law shape their legal rights and opportunities in the labor market. The laws of the workplace empower employers to discipline workers in response to non-workplace misconduct, and the tort doctrines of negligent hiring and retention expose employers to potential liability if they hire people with criminal records.9 Therefore, private employers have become critical players in the contemporary criminal system.10 But, at the same time, they remain critical sources of social services—health care, childcare, etc. This Article treats collateral consequences in the labor market as a window into a troubling and under-appreciated dynamic in the criminal system: the role of private actors and institutions in the delivery and design of punishment.11
My goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace encourage employers to reject job applicants with criminal records and to discharge employees based on non-workplace misconduct. I argue that through these legal mechanisms private employers effectively operate as a branch of the criminal system without constitutional or significant structural checks. Therefore, this Article argues that the criminal system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment.
Criminal law’s collateral consequences in the employment sphere should be cause for concern for many of the reasons collateral consequences in general are cause for concern (including that they operate as “invisible” punishment).12 But the collateral consequences in the employment sphere raise an additional set of concerns because they ostensibly arise outside of the criminal system and often depend on the decisions, preferences, and incentives of private actors. By focusing on private employers and their public function in extending the effects of punishment, I argue that criminal employment law illustrates structural flaws with both the criminal system and the legal status of employment. Employment and labor law scholars should be concerned about the shadow economy of those who are unwelcome in the formal labor market as a result of past criminal convictions (or even arrests).13 By tying employer liability to criminal records, the legal system invites (and often requires) employers to monitor their employees’ behavior away from work. At the same time, criminal law scholars should consider how employment restrictions might serve as extensions of criminal punishment and how the involvement of private employers might complicate discussions of criminal justice reform. If private employment provides the vehicle through which workers access critical benefits, then public functions of the welfare state are necessarily filtered through the actions, decisions, and preferences of private employers.
Employers’ role as disciplining force is reflected not only in the tort law doctrines of negligent hiring and retention,14 but also in the public demand for and proliferation of employee conduct policies that put employers in a position to punish workers for non-work-related criminal misconduct.15 Such doctrines and policies may be appealing—we as a society may want employers to assume this role as a cost of doing business and to be responsible for the conduct of their employees. But this Article will consider the effects of such a legal framework. My claim is not that employers should never be permitted to consider a job applicant’s or employee’s allegedly criminal conduct. Rather, my goal is to assess how those consequences operate and to confront the costs of employer decision-making as an extension of criminal punishment. To the extent that involvement with the criminal system is creating or preserving a racial and socioeconomic underclass,16 it is important to ask how the classifications operate in practice. If employers effectively operate as an arm of the criminal system, do criminal procedure principles have a place in the employment law pantheon? And to the extent that such an application would be inappropriate, should we also be skeptical about delegating criminal justice–related tasks to employers in the first place?
In an effort to address these questions, this Article will proceed in four Parts. The Article will first ask how and why criminal employment law has proliferated, before turning to the costs of criminal employment law. Part I will describe how criminal employment law fits into the broader scholarly discussion of collateral consequences. Next, Part II will examine how criminal employment law operates and will provide an overview of its legal architecture and justifications. This Part will focus on two areas of law that shape employer incentives and regulate the employment relationship: (1) the tort doctrines of negligent hiring and negligent retention and (2) personnel or employee conduct policies that provide for employee discharge or discipline based on non-work-related interactions with the criminal system. While these two legal areas are distinct and implicate the criminal system in different ways, they both allow for employers to advance or exacerbate the punitive effect of underlying state action (e.g., arrest, conviction, etc.).
Next, Part III will examine further the justifications for criminal employment law by (1) situating it within the literature on the collateral consequences of conviction and (2) considering the limitations of possible policy solutions. This Part will survey briefly a set of policy responses that courts or legislators might adopt to check the impact of tort liability and conduct policies on the work-lives of individuals with criminal records. I will look to policy proposals aimed at reducing employment consequences for the previously incarcerated: (1) modification of the negligent hiring/retention tort doctrines; (2) “ban the box” laws that restrict employers from considering criminal history in hiring decisions17; (3) traditional employment discrimination principles; (4) contractual solutions to employers’ private conduct policies; and (5) integration of employment considerations into sentencing determinations. I will describe the potential benefits of each solution, but by emphasizing the persistent problems associated with the role of private employers in the criminal punishment (and even rehabilitative) enterprise, I also will note the ways in which each might fall short.
Part IV will turn to the costs of criminal employment law by asking what is wrong with this legal regime. This Part will continue the focus on the status of criminal employment law as a public/private and civil/criminal hybrid. To the extent that relaxing the state action doctrine and extending procedural protections to private employers are unpalatable or problematic solutions, this Article will ask why. Or, perhaps more importantly, if constitutional criminal procedure principles do not have a role to play in the workplace, why should private employers be asked to, expected to, or allowed to operate as disciplinary institutions tasked with punishing worker malfeasance that does not affect the workplace? By exploring the answer to this question, I hope to examine the costs of the hybrid public/private approach to employment law and the significant social costs of encouraging private actors to further punitive ends.
Ultimately, I will argue that criminal employment law has a lot to tell us about both the structure of criminal punishment and the nature of employment. I highlight how employment law doctrines and employment consequences shape and are shaped by the criminal system and how a comprehensive reform movement must engage with these ostensibly disparate legal areas and grapple with the pathologies and power dynamics of the employment relationship.
I. The Context of Criminal Employment Law
In some sense, criminal employment law operates as a quintessential collateral consequence of criminal punishment.18 An individual is convicted, arrested, charged, or subject to some state action, and, as a result, she faces a new set of challenges not specifically identified by the sentencing judge, arresting officer, or relevant law enforcement personnel.19
But my treatment of criminal employment law differs from most scholarly accounts of collateral consequences. The growing literature on collateral consequences (including employment consequences) generally treats these effects as a public law problem.20 That is, scholars and advocates have trained their fire on formal collateral consequences—statutes that explicitly restrict the rights of individuals with criminal records.
For example, in its 2003 Model Standards on the “Collateral Sanctions and Discretionary Disqualification of Convicted Persons,” the American Bar Association (ABA) Task Force on Collateral Sanctions and Discretionary Disqualification of Convicted Persons laid out a comprehensive proposal to address the growing web of collateral consequences.21 While the Standards distinguish between “collateral sanction[s]” (consequences that attach automatically) and “discretionary disqualification[s]” (consequences that the state is “authorized but not required to impose on a person convicted of an offense on grounds related to the conviction”), they only address state action.22 That is, the Standards focus on how state actors make decisions, but they have little to say about consequences shaped by private actors and “private law.”23
Addressing these formal collateral consequences certainly is critical to understanding and reforming the realities of the criminal system. But these consequences are only part of a bigger picture. By focusing exclusively on statutes and state actors, the Standards—and much collateral consequences scholarship—understate the role of private actors and attendant common law and private social regimes.24
This Article departs from the Standards’ approach in order to address “informal” collateral consequences. “Unlike formal collateral consequences, such as loss of public housing eligibility, deportation, occupational disqualification, or electoral disenfranchisement,” Wayne Logan explains, “informal” consequences “do not attach by express operation of law.”25 Informal collateral consequences “aris[e] independently of specific legal authority, and concern the gamut of negative social, economic, medical, and psychological consequences of conviction.”26 In introducing this distinction, Logan has argued that legal scholars’ important work on collateral consequences has undervalued the significance of these informal consequences.27
This Article’s focus on the role of private employers in the criminal system is intended to respond to Logan. In examining criminal employment law, this Article takes up and continues the larger project of considering the informal collateral consequences and the legal and social conditions that shape them. The institutions of criminal employment law that I address depend on the conduct of private employers and a range of (at least ostensibly) private social orderings, rather than statutory diktats.28 While the employment decisions and legal regimes outlined in this Article may be responsive to statutory, common-law, or consumerist pressures, they hardly fall into the ABA Standards’ framework. Instead they rest on an even more opaque set of decisions and decision-makers.29
I do not mean to undersell the important work that other collateral consequences scholarship and the ABA taskforce have done in bringing “invisible punishment” to the fore and deconstructing the direct/collateral distinction. This distinction has been critiqued rightly as “formalistic,” “outdated,” and “unprincipled.30 Indeed, dating at least to the 1950s, criminal law practitioners and scholars have attempted to catalog and curb collateral consequences.31 Drafted in 1962, decades before the rise of scholarly attention to collateral consequences, section 306.6 of the Model Penal Code explicitly addressed the need to confront these harms by granting the sentencing court the authority to enter an order eliminating “any disqualification or disability imposed by law because of the conviction . . . .”32 While this provision of the Model Penal Code has failed to gain acceptance, recent work is a big step in the right direction.
That being said, the exclusive focus on “formal” collateral consequences understates the scope of the problem faced by individuals with criminal records. Further, by failing to address informal collateral consequences, the current discourse invites policy solutions that fail to remedy much discrimination against those with criminal records.33 Therefore, this Article argues that criminal employment law—a class of “informal” collateral consequences—requires the same attention as mandatory or “formal” collateral consequences.
My claim is that criminal employment law mirrors the same patterns as formal collateral consequences and risks producing similar effects. Certainly, as a descriptive matter there is a difference between a consequence that attaches automatically or via state action and one that does not—the latter necessarily implicates the discretion of private actors and, as a result, is less predictable.34 That is, informal collateral consequences like criminal employment law are even collateral to the consequences treated as collateral consequences by legal scholars. But, if these private decisions have similar effects, why should this formal distinction matter? If discretion is routinely exercised in the same way, then we should be able to predict its consequence. Criminologists Devah Pager, Bruce Western, and others have shown that employers generally would prefer to hire job applicants without criminal records.35 So, even if the employment consequences are contingent on the decisions or policies of private actors, it appears that the effects are at least somewhat predictable.36
If we know that a criminal conviction is likely to render an individual unemployable, and if we know that a range of economic benefits and social and civil rights are tied to employment, then we should be able to identify a set of collateral consequences that are highly likely to result from conviction. While the consequences may not be mandatory and while they might rest on private decision-makers, they are foreseeable. Thus, to the extent that scholars have argued that formal collateral consequences should be factored into decisions about punishment or sentencing, I argue that informal collateral consequences also should be. As the Standards indicate, scholars and attorneys have identified a set of tools and institutional reforms that might take collateral consequences seriously.37 It is impossible to assess whether sentences are too harsh, too lenient, etc. if we do not know the parameters of each sentence.38 Probable unemployment, coupled with the attendant social and economic problems, might appear disproportionate when coupled with lengthy prison sentences or other direct effects of conviction (or, in some cases, perhaps not). To the extent formal punishment plus informal collateral consequences appear disproportionate, they should trigger the sorts of policy proposals and inspection that the Standards put forth and scholars of collateral consequences have raised.
Even if criminal employment law were not troubling as excessively punitive, though, it still would raise predictability concerns. That is, the contingency of criminal employment law in and of itself should be an issue. An enormous amount of case law and scholarly literature has focused on the role of discretion in sentencing (whether it is properly exercised by the judge, the legislator, or the prosecutor; whether determinate sentencing schemes yield fairer outcomes; whether discretion helps or hurts defendants of color and other marginalized groups).39 Regardless of our view on the proper function of discretion in determining punishment, it is important to note that private employment consequences shift decisions about the treatment of individuals with criminal convictions outside of the scope of the criminal system altogether.40 Given that the criminal code is a product of political decisions by political actors, someone will always be exercising some degree of discretion in shaping criminal punishment. Should that someone be a private employer?
Put simply, the conventional treatment of formal collateral consequences understates the role that private actors and informal consequences play in shaping the lives of individuals with criminal records. By focusing on private employers and non-statutory legal frameworks, I hope to shine a light on the private decisions and legal doctrines that shape the experience of punishment. To this end, the next Part lays out the legal framework of “criminal employment law.”
II. The Framework of Criminal Employment Law
A wide array of legal and extra-legal institutions shapes the interaction between the criminal system and the labor market. For individuals arrested, charged, or sentenced, a web of statutes will affect their attempts to obtain or retain employment.41 Licensing laws in many states bar those convicted of crimes from a range of occupations,42 and seven states go so far as to forbid those convicted of a felony from holding any public jobs.43 According to the National Inventory of Collateral Consequences of Conviction (NICCC) maintained by the ABA, 599 federal statutes and regulations restrict employment for those with criminal records.44 As of March 2016, eighty-five percent of all the statutes and regulations in the NICCC (state and federal) pertain to the employment rights of those with criminal records.45 Indeed, looking to the employment-related statutes in the broader context of other denials of rights and benefits,46 it would be hard to disagree with James Jacobs’s characterization of those with criminal records as “second-class citizens by law.”47
Statutory criminal employment law—the web of laws that governs public employment and public licensing—is ubiquitous.48 But, in this Part, and in this Article generally, I do not want to focus on the statutory schemes. These statutes are certainly important. They shape the circumstances of reentry and the broad sweep of the criminal system. But, while they are hidden punishments, unmentioned at sentencing and not written into the criminal laws that define offenses or prescribe punishment, they are still more visible than another corner of criminal employment law: ostensibly, private “private law”49 doctrines of employer liability for employee conduct and employer disciplinary systems. These non-statutory institutions play a critical role in the broader framework of criminal employment law.50 The use of criminal background checks as a prerequisite to employment has expanded substantially in the last twenty years,51 and surveys have shown that over sixty percent of employers would not knowingly hire people with criminal records.52 This means that much of the work of criminal employment law operates extra-statutorily.
There may be legitimate reasons why employers are hesitant to hire those with criminal records. But it does not follow that any conviction should bar any type of employment, or that the law, employers, or consumers are necessarily justified in imposing blanket bans. Further, this Article emphasizes that those decisions and those preferences have significant social and distributional costs. To the extent that they disadvantage certain groups, have criminogenic effects, or are undervalued in calibrating punishment, they require our attention.
As sociologist Bruce Western describes it, the treatment of individuals with criminal records, particularly black men, has resulted in a process of “social exclusion.”53 This marginalized population “bears the stigma of official criminality in all subsequent spheres of social life, as citizens, workers, and spouses.”54 According to Western and other scholars of reentry, the marginalization is inextricably linked to employment and to the labor market—mass incarceration removes many people from the labor market directly (via imprisonment) and indirectly (via the collateral consequences that follow release).55 “[P]enal exclusion has been layered on top of economic and racial exclusion,” argues David Garland, “ensuring that social divisions are deepened, and that a criminalized underclass is brought into existence and systematically perpetuated.”56 That is, the carceral state and the effects of mass incarceration are embedded in a broader set of economic conditions.
In this Part, and in this Article generally, I will focus on the decisions made by employers and the common law doctrines and private agreements that structure those decisions in an effort to examine the legal architecture of this social and economic exclusion. Specifically, this Part first will examine the tort law doctrines of negligent hiring and retention, which allow for liability when employers hire or retain individuals with criminal records. Next, this Part will discuss the rise of employee conduct policies that allow for employers to discipline or discharge employees based on criminal investigations, arrests, or charges.
A. Negligent Hiring and Retention
In order to understand the place of “private law” in the criminal system, it is important to recognize tort law’s role in bringing criminal records into the workplace. The doctrines of negligent hiring and retention create potentially broad avenues for direct employer liability based on the identity and history of employees.57 “These theories of recovery impose liability for an employee’s intentional tort, an action almost invariably outside the scope of employment,”58 but they do so because of an overarching attempt to “address risks created by exposing members of the public to a potentially dangerous individual.”59
Both doctrines rest on the premise that an employer may be responsible for the misconduct of her employee even when the employee acts outside the scope of her employment. An employer “is under a duty to exercise reasonable care so to control his [employee] while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them” if the conduct satisfies four elements—the employee: (1) “is upon the premises in possession of the [employer] or upon which the [employee] is privileged to enter only as his [employee],” or (2) “is using a chattel of the master,” and the employer: (3) “knows or has reason to know that he has the ability to control his [employee],” and (4) “knows or should know of the necessity and opportunity for exercising such control.”60 Specifically, in the context of negligent retention, an employer may be liable for “retaining in his employment [employees] who, to his knowledge, are in the habit of misconducting themselves in a manner dangerous to others. This is true although he has without success made every other effort to prevent their misconduct by the exercise of his authority as [employer].”61
In negligent hiring and retention cases, therefore, courts focus on the “propensities” of the employees.62 For this reason, the doctrines remain distinct from general principles of respondeat superior.63 As the Supreme Court of New Jersey has explained:
[T]he tort of negligent hiring addresses the risk created by exposing members of the public to a potentially dangerous individual, while the doctrine of respondeat superior is based on the theory that the employee is the agent or is acting for the employer. Therefore the scope of employment limitation on liability which is a part of the respondeat superior doctrine is not implicit in the wrong of negligent hiring.64
That is, an employer’s liability for her employee’s tortious conduct within the scope of employment is not predicated on the employer’s knowledge of the employee’s character, background, or predilections outside of work. Respondeat superior liability’s focus is on the workplace itself and the manner in which an employee does her job, or the way in which an employer trains and supervises her employee. Negligent hiring and retention, on the other hand, base liability on an employee’s identity and the sufficiency of her employer’s efforts to suss out past misdeeds or misconduct.65
Criminal records naturally come into this analysis when courts examine knowledge and foreseeability66—i.e., whether an employer knew of the employee’s propensity for bad behavior and whether the resulting harm to third parties was foreseeable.67 Whether an employer knew or should have known of an employee’s propensity for misfeasance might rest on whether a background check had been conducted (and how thorough that check was).68 Similarly, whether the ultimate tortious conduct and injury were foreseeable might turn on the nature of any past arrests or convictions.69 That is, a criminal history need not render future misconduct foreseeable if the past offense differs substantially from the ultimate tortious or criminal conduct.70
While courts consistently have held that failure to perform a criminal background check does not amount to negligence per se,71 courts frequently treat an employer’s decision to conduct a background check as evidence of due diligence.72 And, an employer’s failure to conduct a background check or failure to investigate suspicious conduct or gaps in a resume may weigh against an employer and create a triable issue of fact for the jury.73 Indeed, as a practical matter, given the significant rise in employment-related background checks and technological advances in access to records that make retrieval less costly and time consuming,74 it would not be unreasonable to conclude that a risk-averse employer would make a criminal background check a prerequisite for any range of jobs.75
That being said, while courts may focus on the presence or absence of a background check, it is unclear what criminal records actually tell us about the foreseeability of future harm (or, for that matter, an employee’s propensity for tortious or criminal conduct). As an empirical matter, the probative value of criminal records in assessing future offending remains a point of some scholarly uncertainty.76 For example, in a 2009 study, Alfred Blumstein and Kiminori Nakamura found that the predictive weight of a past conviction diminishes significantly over time.77 Using data from New Yorkers arrested in 1980 for robbery, burglary, and aggravated assault,78 Blumstein and Nakamura found that the “hazard rate” (i.e., the risk of re-arrest)79 declined rapidly after the initial conviction.80 For the bulk of the subjects of the study, within five years, the hazard rate had dropped to the normal rate for record-less New Yorkers of the same age.81 Further, to the extent rehabilitation retains any purchase as a justification for criminal punishment, treating past misconduct as evidence of future wrongdoing is deeply troubling. In other words, the logic of rehabilitation fails if people who have served their sentence continue to be treated as dangerous or suspect.82 Nevertheless, despite these flaws, courts continue to use criminal history as a proxy for risk.
Before moving on to address employee conduct policies, it is worth pausing to note the significance of negligent hiring and retention in the body of criminal employment law. While these tort doctrines initially might not seem as imposing as the statutory components of criminal employment law, it would be a mistake to understate their significance in shaping employer preferences and restricting the job market for people with convictions. A 2001 study found that employers had lost seventy-two percent of negligent hiring cases that went to trial.83 Average pre-trial settlement amounts of the studied cases topped $1.6 million.84 Therefore, employers face significant financial incentives to avoid hiring those with criminal records, or at least to be very careful in assessing the criminal histories of any applicants.85 Even for industries or occupations where no statutory or regulatory diktat bars employing people with criminal records, the specter of costly civil litigation might make discriminating against those with criminal records a “rational” decision for many employers.86
B. Employee Conduct Policies
Where the tort doctrines provide employer liability, employee conduct policies or handbooks do not necessarily give rise to liability; instead, they shape the contractual relationship between employer and employee.87 “Most state courts have found that an employee handbook or other policy statement can create an enforceable contract between employer and employee.”88 In cases where employers (private or public) have contracted out of the traditional “at-will” employment, they occasionally take advantage of conduct policies to restrict or further define the behavior that they expect of their employees.89 These policies operate as internal rules or constraints on employees, granting rights to employers to discipline workers based on misconduct.90 In some cases, these policies operate as a version of “morals clauses”—contractual terms that allow for discharge or discipline if an employee acts in such a way as to compromise the image or moral standing of the employer.91 Such contracts have a long history in the entertainment and education industries, where consumers and students, respectively, are assumed to be particularly responsive to the character and identity of the employee (i.e., the actor or teacher).92
Perhaps the most publicly visible form of the policies in the current labor market has been the proliferation of player conduct policies in the professional sports context.93 In the wake of highly publicized off-field and off-court incidents, the National Football League (NFL) and National Basketball League (NBA) have implemented conduct policies that govern the behavior of their players at all times.94 These policies allow the league commissioners to discipline players who are arrested for or convicted of crimes.95 For purposes of this Article, it is critical to note that this misconduct need not take place at work or be directly tied to workplace safety.96 Instead, in some cases, the employer may exercise authority to fire or discipline an employee based on actual or alleged misconduct that has occurred when a worker is “off the clock” and conducting personal business.97 In one highly publicized incident, NFL Commissioner Roger Goodell initially suspended Ray Rice of the Baltimore Ravens for two games for allegedly assaulting his fiancée, Janay Palmer.98 After a video surfaced that showed Rice knocking Palmer unconscious, public outcry caused Goodell to attempt to increase the punishment for Rice indefinitely and declare that domestic violence incidents would receive harsher treatment going forward.99 Put simply, the public demanded a response beyond what the criminal system offered,100 and Goodell—as a voice of the NFL owners—was able to mete out that punishment.101 There are numerous reasons why the world of professional sports is not representative of the U.S. labor market, but the Rice case nonetheless should serve as a useful illustration of a conduct policy’s application.102
These personnel or employee conduct policies have received less scholarly attention than negligent hiring and retention. And, aside from the sports context, they have received limited public attention. Indeed, it is difficult to determine how ubiquitous they are.103 But, I think it is fair to treat them as closely related to the tort doctrines discussed above and as a piece in the broader criminal employment law puzzle. Employee conduct policies function as part of a legal regime in which employers are often viewed as responsible for the actions and characters of their employees. The tort law doctrines discussed in the previous Section rest on this view of the employment relationship, so it should not be much of a reach to consider those doctrines as closely related to a set of private orderings that re-inscribe and delineate the terms of that employment relationship. Viewed in this light, the policies might serve one of several functions for employers.
First, they might operate as a means of shielding employers from liability under theories of negligent hiring and retention (or other analogous tort or statutory theories of liability). If an employer includes a specific term forbidding her employee from acting criminally (or perhaps even being arrested), and if the employer monitors her employee and disciplines based on breach of the policy’s terms, then perhaps she might be able to defend against suits arising from the employee’s misconduct.104 In other words, an employer is “putting in writing” its commitment to preventing employee misconduct, preemptively going on record to disapprove of conduct by an employee that might otherwise expose the employer to liability.105 Therefore, the policies might function as a natural outgrowth of negligent hiring/retention theories and, perhaps more broadly, respondeat superior liability.106
Second, and perhaps relatedly, the policies might serve as a sort of public relations or cultural framing strategy for employers.107 Particularly in response to public perception of lawlessness or callousness on the part of an employer or an industry, such policies can signal awareness and engagement.108 That is, the presence (and perhaps the publicizing) of such policies might signal to consumers or clients that the employer takes her social responsibility seriously. An employer does not want “criminals” on her payroll, and she cares about more than the bottom line—or, at least, so the policy signals. 109 Rather than waiting for the state to take criminal action or allowing the state to define the terms of punishment, the employer is signaling that she is willing to impose her own moral condemnation.110
This explanation finds particular purchase in the professional sports context, where public outcry about players’ actions off the court have prompted league commissioners to draft and aggressively enforce “player conduct policies” that allow for fines, suspensions, and all-out bans based on convictions, arrests, and—in some cases—even investigations.111 In these situations, sports fans or commentators would have had no basis to pursue legal action—by allowing Rice to continue playing in the NFL, Goodell would not have harmed viewers or NFL fans.112 Therefore, it seems much more plausible that the policies reflect a strategy of public presentation, rather than an effort to avoid liability.113 It is worth noting that the sports context is unusual in the degree of publicity that the policies receive—crafting an employee conduct policy for public relations purposes would not make much of an impact if consumers were unaware of the policy (or of the underlying misconduct).114 Nevertheless, viewed through the broader lens of corporate social responsibility, any attempt to craft an employer-sanctioned moral, ethical, or behavioral code might reflect an attempt at crafting an image of a good corporate citizen. Such an image might render an employer’s business more profitable or might even help to shield the employer from external regulation or suit.115
Finally, and perhaps most straightforwardly, we might view these policies as an attempt to establish greater employer control over employees. After all, whether these policies are merely aspirational or whether they are enforced actively, they purport to set the parameters of employee conduct and set up employers to police those boundaries. As a general matter, employers presumably wish to control the behavior of their employees to the extent possible.116 And, to the extent that the law allows for—and may even encourage—such control,117 why wouldn’t employers try to exert it? This rationale might be a close relative of the first two justifications: (1) the law assumes that employers “control” their employees, so it is in an employer’s best interest to exercise this control fully if she might ultimately be liable for her employee’s conduct118 and (2) consumers and the public at large might view the conduct of employees as having the tacit approval of their employer.119 If that is the case, then it seems only logical that an employer would try to shape this conduct in any way possible.
Ultimately, the three justifications for employee conduct policies appear to overlap significantly. Each finds some basis in an underlying assumption that it is the place of the employer to control the activities of her employee. Or, perhaps more broadly, each relies on a belief that an employer is the actor or institution (rather than, or in addition to, the state) that ought to discipline individuals who behave badly.120 Whether the exercise of control is responsive to a descriptive recognition of the legal lay of the land or a normative response to public demands depends on which rationale we view as the primary driver of these policies.
Regardless of what is actually motivating each individual employer, it is important to recognize the potential significance of these policies if broadly applied—or, broadly written. Imagine two different types of conduct policies (or, two types of provisions), both of which proscribe conduct that is also criminal. First, consider an employee conduct policy that proscribes certain behavior at the workplace because that behavior causes unsafe working conditions or directly affects the quality of the product or service. (For example, if a mining company prohibits its miners from committing theft and using narcotics on company property.121) Second, consider a policy that bans criminal conduct that occurs away from the workplace and when an employee is not on duty. (For example, if the mining company prohibits its miners from “being convicted of [a] felony criminal offense.”)122
Conduct policies of the first variety certainly might be used by employers to restrict workers unduly or for pretextual purposes. But—at least facially—they are unremarkable: rules are a staple of any workplace or industry, and prohibiting conduct that might endanger other workers or interfere with the functioning of the workplace is not noteworthy.123 Therefore, I want to focus on the second variety (blanket prohibitions on criminality or criminal conduct). Without a clear tether to the safe or efficient functioning of an employer’s business, these kinds of terms or policies may function as criminal employment law. The employer effectively acts to punish privately, either in addition to, or instead of, the state. Certainly, we might explain this kind of behavior using each of the three rationales traced above. But, just because we can rationalize a policy does not make it normatively desirable. Do we trust employers as much as, or even more than, the state to respond to criminal conduct?124 If employers might have private concerns (e.g., avoiding liability, maximizing profits)125 that ostensibly are foreign to the criminal system and traditional purposes of punishment, why should they have a role to play in furthering the criminal system’s ends? And, why should employers take any action before a formal determination of guilt? (I will return to these questions later.)126
Having set up the legal framework for criminal employment law, the next two Parts will take two different tacks to examine criminal employment law’s flaws. Part III asks how to address the expansive scope and effects of criminal employment law. Part IV will return to the broader question of employers’ role as private actors in the criminal system and the ways in which the dual public/private nature of criminal employment law highlights problems with the legal treatment of employment.
III. The Responses to Criminal Employment Law
How might the legal system lessen the unduly harsh impact of criminal law? By addressing a range of proposed legal reforms, this Part continues to examine how criminal employment law operates and why employers might discriminate against individuals with criminal records. I briefly examine a set of policy responses that scholars have identified as a means of mitigating collateral consequences, specifically as they apply to employment-related consequences. By pointing out the limitations of these solutions, I hope to highlight the particular problems posed by criminal employment law’s merger of public and private legal regimes.
Whether employment consequences are best viewed as a form of punishment or as a costly side effect, they are an important part of the daily functioning of the criminal legal system. They present an area in which to consider the ways courts or law makers might exercise control over the spread and operation of the criminal system’s societal impact. As U.S. District Court Judge Lynn Adelman notes in calling for systemic reform:
With respect to collateral consequences, despite the growing body of model laws and best practices created by entities interested in law reform, such as the American Bar Association, no state has yet comprehensively reformed the ways in which people with criminal convictions are prevented from participating in civic and business activities.127
Private employers and private organizations might pose a set of obstacles and considerations absent from the public sector. Yet, that does not lessen the need to study and amend the ways in which these private arrangements continue to extend the force of criminal punishment.
Therefore, this Part takes up the question of what such reforms might look like. I will describe several proposals, some of which have been raised by scholars, attorneys, and activists. A number of these proposals already have been adopted in certain jurisdictions, and a number more might prove beneficial if adopted. In my examination, though, I will note the potential limitations of each solution. These limitations ultimately lead to the discussion in Part IV. There, I will turn to the peculiarities of and problems with the public/private nature of employment and the role of private employers operating in the context of the criminal system. My goal is not to reject these proposals; for the reasons discussed below, I think that they might be positive, but, by noting their limitations, I hope to emphasize the deeper structural problems posed by the relationship between private employers and the criminal system.128
A. Ending or Restricting Tort Liability
Perhaps the most simple and straightforward remedy to the problems caused by negligent hiring and retention doctrines would be to abolish these tort doctrines altogether.129 This fix could come via judicial action (as these doctrines are judicially constructed) or legislative action.130 Under such a hypothetical legal regime, employers would no longer be liable for having negligently hired or retained employees with criminal records. If the fear of tort liability currently keeps employers from hiring or retaining individuals with criminal records,131 then removing the specter of tort liability should remove the bad incentives. Employers might still be liable for the conduct of their employees via respondeat superior, but that liability would turn on employees’ conduct performed within the scope of employment.132
Notably, these proposed tort law regimes would not exclude all such liability for the hiring and retention of individuals with criminal records. A number of the proposals would allow for (or require) employers to consider certain types of criminal history when dealing with certain types of crimes. This exception or carve-out has certain intuitive appeal: if, for example, a job applicant has a history of violent offenses, wouldn’t we worry if she were hired for a security guard position where she would be licensed to use force against civilians? Or, if an applicant had been charged with child abuse, wouldn’t an employer be wise to consider these past offenses before hiring her as a daycare worker? If the touchstone of negligence liability is foreseeability, maybe we could imagine a regime in which tort liability was closely circumscribed in an effort to identify only the most foreseeable of injuries and to predict which employees would create the greatest risk.
This line of analysis quickly gets us back to a central problem: in order to determine if an employee or applicant poses such a risk, someone would need to inspect her criminal record. This approach could take two forms: (1) the state formally could certify that an ex-offender was not a future risk or was suitable to certain types of employment133; or (2) employers could be expected to survey criminal records and assess the future risk posed by a job applicant based on her record.134 Either approach leads through (or at least into) the quagmire of criminal record keeping.135 In an era of plea bargaining, it is difficult to conclude that a criminal conviction for offense X necessarily means that X was the only offense committed or that a jury ever determined there was proof beyond a reasonable doubt that a defendant committed X.136 And, just because employers have access to more information via the internet does not mean that this information is always accurate or that employers are equipped to interpret the information they find.137
Even aside from accuracy, either approach, public or private, should raise concerns. Public certificates of rehabilitations—which six states will grant in some cases138—are both over- and under-inclusive. That is, are there not some cases where an applicant might be rehabilitated to enter certain lines of work, but not others? And, perhaps more importantly, such certificates imply that some people with criminal records are not rehabilitated and that people with criminal records must be rehabilitated. Given that the criminal system does not embrace a single theory of punishment,139 and that it is not clear that all punishment is designed with a rehabilitative goal,140 it seems peculiar to use rehabilitation as the benchmark for reentry. Would the implication be that serving a sentence was not sufficient to atone for a crime? And do we really think that any and all law breaking is so anti-social as to require rehabilitation? Courts and scholars have struggled with the best way to predict future offending;141 it is not clear how certificates could serve as sufficiently reliable predictors of future dangerousness.
Private analysis of criminal records also poses problems. Employee privacy is a casualty of background checks generally,142 and determining how egregious past misfeasance was or how much of a risk the prospective employee might be could require further intrusions. Although state-issued certificates would be problematic, employers’ judgments regarding future dangerousness or likelihood of recidivism seem even more troubling. What epistemic advantage do employers have in assessing these issues, and what reason do we have to think that employers have the same views or incentives as criminal justice actors when it comes time to determine how to react to past offenses?143 By continuing to require employers to conduct background checks, this narrowed tort liability still would not get employers out of the business of analyzing criminal records.
Finally, it is worth noting that the prospect of tort liability might not be the only risk-focused legal regime pushing employers not to hire people with criminal records. Insurance policies might preclude coverage or raise premiums when employers did not use background checks or when they hired people with criminal records. Certainly, insurers might be less likely to adopt such restrictions absent the threat of tort liability under negligent hiring/retention. But—based on actuarial calculations and general risk averseness—insurers might retain these bars in a world without negligent hiring or negligent retention liability. Therefore, insurers might continue to re-inscribe the same troubling incentives, even if tort doctrine ostensibly fixed the problem.
B. Ban the Box
Rather than relying exclusively on tort-based solutions, some scholars and activists have advocated statutory restrictions on employers’ use of criminal records in hiring.144 The ban-the-box movement, both domestically and internationally, has pushed for legislation to prohibit employers from considering criminal history in hiring decisions.145 By preventing employers from initially inquiring into criminal history, ban-the-box laws (i.e., laws that “remove the check box or question from employment applications that asks whether the applicant has ever been convicted of a crime”146) attempt to level the playing field for those with criminal records.147
This strategy to curb collateral consequences in the labor market has achieved some political success. In 1998, Hawai’i passed the first legislation to remove criminal history questions from employment applications.148 In the ensuing decades, the movement spread to other jurisdictions.149 As of April 2018, one hundred and fity cities and thirty-one states had passed some form of ban-the-box legislation.150 Further, in November 2015, President Obama “called on Congress to follow a growing number of states, cities, and private companies that have decided to ‘ban the box’ on job applications” and directed the Office of Personnel Management to delay background checks “until later in the hiring process.”151 And, in 2016, President Obama went so far as to propose that all federal employers adopt ban-the-box rules.152 In short, banning the box is an increasingly mainstream approach to the problems of reentry and re-employment for the previously incarcerated.
However, these statutes, ordinances, and policies have some significant limitations. Most only restrict the behavior of public employers;153 they have frequent exceptions for types of employment and classes of employment;154 and they often are silent as to when and to what extent employers may consider criminal history.155 And, like a number of other policy proposals discussed here, ban-the-box has little to tell us about the rights of workers who have already been hired and then are arrested or charged with a crime. As Jonathan Smith, then-Assistant Counsel to the NAACP observed, ban-the-box provisions “do not, for the most part, preclude an employer’s consideration of criminal history information. They simply delay it to later stages in the screening process.”156 That is, these provisions do not constitute a comprehensive anti-discrimination regime. Rather, they may offer a foothold for some job applicants to climb over the structural obstacles of life with a criminal record, but they do not necessarily remove the obstacles.157
Further, a recent study by Amanda Agan and Sonja Starr showed that ban-the-box policies might produce some troubling unintended consequences—specifically, ban-the-box might increase employer discrimination in job callbacks.158 Based on a sample of New York and New Jersey employers, Agan and Starr found that after these laws went into effect, “white applicants went from being 7% more likely to receive a callback than similar black applicants to being 45% more likely.”159 Agan and Starr offer two possible explanations: (1) “statistical discrimination against black men”—absent background checks, employers might be more likely to assume that black applicants, rather than white applicants, had criminal records; or (2) “benefits for white applicants”—without information about criminal records, employers simply might prefer white applicants, so that a white applicant with a record might be more likely to get a job that a black applicant without one.160 While we do not know what actually accounts for Agan and Starr’s findings, the proffered explanations for this phenomenon both suggest that ban-the-box laws cannot be treated in a vacuum. The causes speak not only to possible shortcomings in the legislation itself but also to broader pathologies of race and class in the labor market and criminal system.161
None of these critiques is intended to diminish the positives of ban-the-box or the very real possibility that it is the most politically feasible option discussed in this Part. But, if we are concerned more broadly with the relationship between private employers and the criminal system, it is not clear that—as written—many of the ban-the-box policies provide a comprehensive, long-term solution to the problem.
C. An Employment Discrimination Model for Criminal Records
To the extent that ban-the-box does not go far enough, perhaps the answer is a comprehensive anti-discrimination approach. Using Title VII of the Civil Rights Act of 1964162 as a model, some scholars and commentators have argued that the best means of addressing discrimination against the formerly incarcerated is to treat it as discrimination.163 Under this framework, individuals with criminal records might become a suspect class whose employment status would not rise and fall entirely on the whim of their employers.164 Alternatively, some have argued that discrimination against those with criminal records violates Title VII because of the disparate impact of such discrimination on black and Latino job applicants.165 The Supreme Court has never directly addressed criminal record discrimination,166 but we do have some guidance on how such litigation would proceed.
First, some states have adopted a discrimination-based approach. New York, for example, prohibits employers from denying employment “by reason of the [applicant’s] having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of ‘good moral character’ when such finding is based upon the fact that the individual has previously been convicted of one or more criminal offenses . . . .”167
Second, the federal government has weighed in on the potential issues posed by employment discrimination against those with criminal records. In 2012, the Equal Employment Opportunity Commission (EEOC) weighed in on the place of criminal background checks in the workplace, providing official guidance on the issue.168 Addressing the interplay between Title VII and the criminal legal system, the EEOC noted the limitations of the current legal regime:
Having a criminal record is not listed as a protected basis in Title VII. Therefore, whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin.169
That is, absent some other legal determination that individuals with a criminal history are a suspect class, a discrimination analysis would rest on the racial identity of those with criminal records. Nevertheless, relying on statistical evidence of criminal law’s disparate impact on people of color,170 the EEOC has advised employers that blanket criminal records exclusions can have a disparate impact based on race or national origin, thus falling afoul of Title VII’s bar on discrimination.171
However, the hiring practice’s disparate impact alone is not sufficient to prove a Title VII violation.172 Rather, a disparate impact finding simply shifts the burden of persuasion to the employer to demonstrate that “the challenged practice is job related for the position in question and consistent with business necessity . . . .”173 The exact contours of the business necessity defense continue to confound courts and commentators,174 but the Third Circuit has addressed the exception’s application to criminal-record-based discrimination.175 In El v. Southeastern Pennsylvania Transportation Authority (SEPTA),176 Douglas El brought a Title VII claim against SEPTA after he was fired from his job as a medical transportation worker because of his criminal history.177 Forty years earlier, when he was fifteen, El had been convicted of second-degree murder.178 SEPTA had hired El conditionally pending a background check, but fired him immediately upon learning of the conviction.179 El, who was black, claimed that SEPTA’s blanket prohibition on employing anyone with a “violent felony” conviction had a racially disparate impact.180 The Third Circuit rejected this argument, concluding that SEPTA’s policy fell within the business necessity exception because of the close contact between patients and employees and the predictive value of past convictions.181 The court noted that “it is impossible to measure the risk perfectly,” but “Title VII does not ask the impossible. It does, however, as in the case of performance-related policies, require that the policy under review accurately distinguish between applicants that pose an unacceptable level of risk and those that do not.”182
Therefore, as with the other policy proposals, we are left with the question of risk management and risk prediction. As a result, aside from concerns about practicability due to judicial resistance to Title VII suits,183 an employment discrimination model raises two primary issues—“rational discrimination”184 and worker privacy. First, courts may well conclude that much discrimination against those with criminal records is rational. In other words, the business necessity exception (or analogous provisions under state law) might swallow the rule. Indeed, in critiquing the concept of rational discrimination against people with criminal records, Jocelyn Simonson has shown that this rationale largely de-fanged New York’s statutory protections for job applicants with criminal records.185 This comes as no surprise, as the New York statute contains a sweeping “business necessity” exception of its own: employers can discriminate if
(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.186
What is “unreasonable”? And, what constitutes a “direct relationship”? In short, it is not a stretch to see how employers might explain a great deal of discrimination in rational terms as calculated to protect their own interests and those of consumers and other employees.
Second, much like the strategy of curbing tort liability, this employment-discrimination approach quickly raises employee privacy concerns. It is unlikely that under a discrimination paradigm an employer never could discriminate against a worker based on her criminal history. Judging from the statutory licensing schemes discussed above as well as the carve-outs to ban-the-box laws, there is strong public support for keeping some people with some criminal histories out of some jobs. And, as in the tort context, determining whose criminal history is sufficiently serious would require someone to assess criminal history. Put simply, the same issues raised in the tort context apply here187: either (1) employers would be responsible for this screening, putting them on notice of all an applicant’s past misconduct and allowing them to determine what offense predicted future dangerousness/offending; or (2) the state would have to provide some prediction of future dangerousness.188
D. Contractual Solutions to the Problem of Conduct Policies
The background rules of tort law and employment discrimination certainly might drive employers’ incentives to adopt employee conduct policies. Regardless of whether there is a change in these background rules, though, contract law might offer some assistance in reigning in the policies themselves. That is, as discussed in Part II, employee conduct policies are agreements between employers and (sometimes unionized) workers.189 Therefore, if we look to contract law here, we might land on one of the contractual doctrines designed to restrict the content or form of an agreement.190 But it is hard to imagine judges broadly applying a set of doctrines (e.g., unconscionability) that tend to be disfavored and that courts rarely embrace.191
Perhaps these agreements could be void as against public policy192—a court might hold that the provisions of a conduct policy that impose penalties on workers based on arrests, convictions, etc. fall afoul of some broader public interest or policy.193 An agreement might be void for public policy agreements “if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.”194 But what policy? The broader framework of criminal employment law and the statutory network of collateral consequences hardly speak to a preference for forgiveness.195 Indeed, the broader web of collateral consequences that accompany conviction suggests that the legal regime we have is one in which ex-offenders generally cannot escape their records and criminal conviction is treated as a reliable predictor of future risk.196
Returning to the morals clause analogy or to what Stephen Sugarman calls “lifestyle discrimination,”197 it might be that courts would be suspicious of agreements that sweep in too much conduct with no apparent relationship to work or to the employer’s business.198 To the extent that courts view employment contracts as existing against a backdrop of public preference for employee privacy, these concerns might have some legal bite. Courts tend to grant employers great latitude in restricting employee conduct, but that needn’t mean that employer control is unlimited.199 However, as discussed in the previous Sections, employers might still provide compelling (or at least colorable) claims of why conduct away from work does spill over into the workplace or might have some nexus to employment.200
E. Employment Consequences at Sentencing
A common goal of the literature on collateral consequences is the incorporation of collateral harms into the sentencing and plea process.201 As noted in the discussion of the ABA Standards, sentencing plays a key role in proposed reforms.202 There are two ways in which collateral consequences could be integrated into the sentencing process: (1) via notice by court or counsel; or (2) via integration into the sentence itself.
1. Notice of Consequences
First, scholars have argued that notice of collateral consequences is essential and that defendants must know what fate awaits them after they plead guilty.203 The Standards explicitly endorse this notice concern, recommending a requirement “that the defendant is fully informed, before pleading guilty and at sentencing, of the collateral sanctions applicable to the offense(s) charged . . . .”204 This concern and the need for notice has taken on greater significance not simply because of the increasing number and severity of collateral consequences,205 but also because of the rise of plea bargaining.206 In a criminal system where a vanishingly small percentage of cases go to trial,207 it is critical that defendants know exactly what punishment they are agreeing to. From a contractual perspective, how can a defendant knowingly agree to the terms of a plea bargain if she does not fully understand the terms—that the sentence she agrees to is not the end of her punishment and that her criminal status carries with it other costs and consequences?208
This concern has garnered significant attention in the context of immigration-related collateral consequences. In Padilla v. Kentucky,209 the Supreme Court took an unprecedented step towards recognizing the importance of collateral consequences at sentencing and as a component of plea deals.210 The Court held that defendants have a Sixth Amendment right to be informed of immigration consequences that flow from a guilty plea.211 The petitioner, Jose Padilla, a U.S. permanent resident, had pleaded guilty to transporting marijuana and, as a result of his conviction, was subject to deportation.212 Padilla claimed that his attorney’s failure to warn him of these immigration consequences prior to the guilty plea amounted to ineffective assistance of counsel, and the Court agreed.213 Padilla sparked even more scholarly work on collateral consequences, in hopes of expanding the Court’s rationale further and requiring additional notice prior to a plea.214
Unfortunately, a Padilla-style notice requirement probably would be a bad fit for private employment consequences. That is not to say that the logic is not compelling—unemployment may pale in comparison to deportation, but both are dramatic, life altering circumstances that a defendant and her family may face as a result of a conviction. Regardless of whether they formally are “punishment,” they flow from conviction. Yet, it is difficult to imagine what notice of employment consequences would look like in practice—or how it would matter. Would a criminal defense attorney be required to produce statistical evidence of employer bias?215 Would the sentencing court consider cost of living and compare it to salaries from employers likely to hire ex-offenders?
In a sense, this issue represents an extension of a general problem with Padilla’s implementation. Darryl Brown has argued that Padilla actually will be of limited use to defendants because it places the onus of learning and appreciating all collateral consequences on the defense attorney.216 For a defendant to understand fully the consequences of her conviction, her attorney would need to grasp and be aware of a massive range of statutes and state and federal schemes that would affect her client post-conviction.217 As noted above, the NICCC makes it easier to scour state and federal codes to identify collateral consequences.218 But this remains a vast and shifting legal landscape.219 And, given the crisis in indigent defense, where attorneys are often under-funded and overworked,220 it is not at all clear that the defense attorney is the best actor to address these issues. Even if Brown were overly pessimistic in the context of statutory collateral sanctions, his point resonates strongly when we consider informal collateral consequences. Communities are home to different businesses with different hiring practices. Therefore, the employment consequences that a defendant will face are contingent upon the idiosyncratic and personal decisions of a range of private actors.221 And, while it would not be unreasonable to expect an attorney (or the court) to offer general warnings about the challenges faced by individuals with criminal records, these warnings could not tell a defendant with certainty what the world would look like for her post-conviction.
Ultimately, regardless of how specific that advice were, it is not clear how meaningful such advice would be or how far it could go in addressing the core problems of criminal employment law. Assuming that most defendants are aware of some general stigma associated with criminal conviction, knowledge might not be the problem. Rather, the problem is the stigma.
2. Consequences as Punishment
Another means of approaching criminal employment law at sentencing is to treat private employment consequences as punishment. Many decisions about probation, parole, and conditions of release focus on the granular or quotidian details of criminal defendants’ lives—where a former offender can and cannot live; where she can and cannot travel; with whom she can and cannot associate.222 Employment consequences are implicated by many of these restrictions and decisions, but courts and probation departments generally do not address them explicitly or on the record. That is, restrictions on where, for whom, or in what industry a former offender may work, are a staple of the modern criminal system and the carceral state. But they are largely invisible.223 Courts do not explicitly weigh these costs to determine if they are proportional to a given offense or if a given defendant is deserving of this added punishment.
A system that purports to value proportionality and individual tailoring of punishment should be required to consider and internalize collateral consequences.224 As Jack Chin puts it, “[s]entencing is designed to impose punishment that is proportionate to the offense and consistent with that imposed on similar offenders. These goals cannot be achieved without evaluating the total package of sentencing facing an individual.”225 Again, the Standards identify this rationale and (at least generally) a potential fix.226 The Standards recommend that courts (and perhaps legislators) “include collateral sanctions as a factor in determining the appropriate sentence . . . .”227
But, again, this solution appears to be a bad fit for private criminal employment law consequences. While the literature on collateral consequences tends to argue that the consequences constitute punishment,228 “collateral consequences are not, strictly speaking, punishment,”229 and courts have not embraced this expansive conception of punishment.230 To the extent that courts are unwilling to treat a range of formal collateral consequences as punishment, it is highly unlikely that they would be willing to treat these informal collateral consequences as punishment.
Further, as discussed in the context of notice at sentencing, the contingency of the employment consequences remains a sticking point. While an attorney, judge, or probation department might predict the challenges involved in finding or retaining employment post sentence, these predictions will be probabilities, rather than certainties. Additionally, as Pager and others have shown, the likelihood of significant employment consequences may depend on a range of other variables including the defendant’s race and education level,231 as well as the employment practices of businesses in the area.
In a sense, then, the reason that this proposal faces major implementation obstacles or has glaring flaws is the very reason that criminal employment law is so troubling: it is both certain and uncertain. As a descriptive matter, we know that individuals with criminal records face discrimination and adverse consequences in the workplace.232 And we know the laws and legal arrangements that underpin this mistreatment. But we cannot be certain who ultimately will make these decisions or how they will make them. The collateral consequences themselves remain contingent. They are a critical component of the criminal system as an extension of punishment. At the same time, they remain external to the criminal system, shaped by private actors and civil legal rules and regulations. The criminal dimension is contingent on civil legal relations, and the public, punitive force is contingent on private decision-makers.
Taking this issue of contingency as a frame, then, the next Part will ask what criminal employment law can tell us about both the private aspects of the criminal system and the public aspects of the employment relationship.
IV. The Implications of Criminal Employment Law
What is wrong with criminal employment law? The policy proposals discussed in the Part III are important, but they are narrow solutions for narrow problems. They treat collateral consequences in the labor market as the product of narrow decisions and narrow doctrinal problems, each in need of a fix.233 Yet they fail to address the broader set of legal relationships in which each decision or doctrine is imbedded. Perhaps the most obvious lesson to be learned from an examination of criminal employment law is the one reached by most scholars of collateral consequences: punishment can be invisible, and if we want to calibrate punishment properly or lessen its impact on individuals and communities, we need to unmask invisible punishment.234 While that is an important lesson, it does not cut broadly enough. Certainly, revealing hidden aspects of punishment is critical to addressing the problems of mass incarceration, and I hope to contribute to the broader project embodied by the ABA Standards, the NICCC, and the growing body of legal and sociological literature on these costs. But, what the previous Part emphasized was the way that—in the employment context—something else is at work.
What is significant, troubling, and in need of reform in the employment context is not only that employment consequences do not appear at sentence. Criminal employment law is significant because it also shows the ways in which criminal law has become private, the ways in which private actors may become a part of the punitive apparatus, extending the effects of punishment without formal checks. And, at the same time, it shows us how employment is public,235 how private employers serve quasi-governmental functions as wielders of disciplinary force and as gatekeepers to benefits, rights, and opportunities. This Part will address the public/private distinction as it applies to criminal employment law, focusing first on the private dimensions of criminal law, before shifting to examine the public dimensions of employment law (or, more precisely, the employment relationship).236 My claim is not that there is a clear or coherent line between private and public. Rather, I hope to highlight the inconsistency in a regime where employers subjugate workers’ rights to the “public” interest, but where workers have limited legal recourse against employers because they are “private” actors.237 Criminal employment law therefore shows that the public/private distinction is not a line at all, but a semi-permeable membrane.
A. Private Criminal Law
Outside of the collateral consequences frame, privatization and the role of private actors in the criminal system increasingly have garnered academic attention over the last few decades. In their treatments of criminal law’s private dimensions, scholars have focused primarily on private prisons,238 with a lesser emphasis on private policing.239 To many critics of these institutions, privatization of punitive functions represents a victory of neoliberal governance principles—the state purports to retain a monopoly on violence, but it does so by commodifying and marketizing state violence (in the form of private prison and policing contracts).240 Law enforcement and incarceration, like other government functions, have become the province of market-based thinking and market-primacy. Viewed through this lens, the turn to private actors in the criminal legal system represents an embrace of an “economistic” view of state services that prioritizes cost and efficiency over values of rehabilitation, socialization, or even retribution.241 Further, by allowing private market actors into the management of the criminal system, policy makers have created a pernicious dynamic: private prison contractors and other stakeholders lack incentives to reduce prison populations; instead, these private actors benefit from large prison populations and punitive criminal laws that ensure a continuing need for the “prison industrial complex.”242
Beyond the political economy critique, scholars have also emphasized the ways in which private actors complicate and even undermine the purposes of punishment.243 For example, in addressing prison privatization through a retributive lens, Mary Sigler argues that “[p]unishment is . . . meaningful not primarily as a means to an end; rather, punishment instantiates justice. The delegation of punishment through prison privatization attenuates the meaning of punishment in a liberal state and undermines the institution of criminal justice.”244 That is, to the extent that criminal law is meant to embody some sort of collective consciousness or shared moral opprobrium,245 a system that employs private actors or that implicates private motives may fail to advance the public interest. Private actors have private incentives and concerns—concerns that they might share with other members of the society, but that need not be embodied formally in criminal law or in the official policies that shape the criminal system.246 In short, what is troubling about private actors in the criminal system is not only their incentives and their status within a market economy; it is their legitimacy. We lack a clear justification for why they (rather than the state, or other private actors) are entitled to exercise force and discipline over other members of the polity. If criminal law is—at least in part—rooted in socialization (or social control), then how can actors without the imprimatur of the state or the stamp of democratic legitimacy perform the rituals of punishment and/or formal societal condemnation?
Given the general lack of engagement with private decision-makers in the collateral consequences literature, it is not surprising that this public/private debate has gone largely unexplored. In looking at criminal employment law as a species of “informal” collateral consequences, however, the problems of private actors become increasing salient. Of course, a vast network of statutory criminal employment law exists that does not implicate private actors, or, at least, that does not implicate the discretion of private actors.247 But, the corners of criminal employment law described in this Article—the tort doctrines and the employee conduct policies—rest on the decisions of private employers. That is, the statutory frameworks, coupled with the tort doctrines create a labor market in which private employers are tasked with and/or empowered to continue to discipline workers based on the past or on parallel proceedings of the criminal system.
Certainly, private employers in this narrative occupy a different position from private prison companies, private security firms, and the other actors critiqued by scholars of criminal law’s turn to privatization. Prison contractors have powerful incentives to support the carceral state,248 but it is unclear that employers do. An employer’s decision not to employ an ex-offender may be rooted in a calculus of efficiency, trustworthiness, or risk aversion,249 but there is no reason to assume that employers benefit directly from the legal regime that discourages hiring people with criminal records or that employers have some stake in preserving it.250
Yet, to the extent we find compelling the privatization critiques in other corners of the criminal legal system, I think that those critiques should be a source of concern here as well.251 In one of the only articles to treat employer discipline through the lens of punishment theory, Janine Kim and Matthew Parlow argued that some types of employer discipline (specifically, in the sports context) resemble private policing.252 Adopting an expressivist approach, Kim and Parlow suggest that the disciplining of workers by professional sports leagues, via employee conduct policies, may send the same sort of public signals that are traditionally associated with criminal punishment.253 In their account, this “punishment” need not supplant state action or formal prosecution in order to implicate considerations of proportionality and public morality.254 That is, the NFL personnel conduct policy—and similar provisions—significantly extend the logic and effects of criminal punishment.255
In some sense, then, criminal employment law, much like the other turns to private actors, fundamentally alters the institutions and operations of the criminal system. The monopoly on state violence that has been used historically to justify criminal law and criminal punishment is (or at least purportedly is) checked by constitutional rights and private causes of action.256 The rules of criminal procedure, the Bill of Rights, and the causes of action under state and federal civil rights statutes create a framework under which state action remains bounded. On the one hand, punitive force is justified by the language of democratic theory and political legitimacy.257 On the other, punitive force and the power of the state to discipline have their limitations, restrictions that nominally grant individuals some protection from official overreach or a criminal system run amok. Put simply, the state action both empowers (via the monopoly on violence) and constrains (via constitutional checks).
Unlike traditional criminal law, criminal employment law is neither fish nor fowl. It is not state action, at least not as most lawyers, scholars, and courts understand it.258 While the Supreme Court has held that “[s]tate action . . . refers to exertions of state power in all forms,”259 the state action doctrine remains dreadfully muddled, a constant source of irritation for both courts and scholars.260 Therefore, in contexts like criminal employment law, where governmental involvement in the ultimate conduct by employers is attenuated at best, it is unlikely that constitutional criminal procedure principles would be applied to private employers. As a result, while private employers lack some of the powers and responsibilities of the state (to incarcerate, to use force, etc.), they also lack the institutional checks on state action. To the extent that the state retains the moral authority and political legitimacy to punish, it need not follow that private employers also do. And, more practically, when the state gets it wrong—i.e., punishes an innocent defendant, commits unjustified violence—Bivens,261 42 U.S.C. § 1983,262 and other legal mechanisms exist to correct, or at least address, the error. When private actors err, it is much harder for the wronged party to seek recourse successfully.263 In George v. Pacific-CSC Work Furlough, for example, the Ninth Circuit rejected a claim that a private prison contracting company was a state actor when it came to claims regarding how it treated prison employees.264 Similarly, in Holly v. Scott, the Fourth Circuit reached the same result in rejecting a constitutional claim against correctional officers employed by a private prison company.265
From a practical standpoint, therefore, the “private” nature of criminal employment law makes it difficult to devise a legal solution. The policy proposals discussed above each hit a wall when we consider that the effects for ex-offenders rely on private decision-makers. That is, criminal employment law remains distinct from the “formal” collateral consequences addressed in the Standards because it is contingent on the decisions of private actors who lack any official relationship to the criminal legal system.266 Outside of the limited Title VII examples discussed above,267 “public law” generally does not recognize criminal employment law or acknowledge these consequences as a part of the criminal law universe. In a sense, then, criminal employment law reproduces the problems of privatization in other areas of the criminal system and illustrates the ways in which private prisons and other targets of critique are not unique. The justice system is a massive apparatus, a network of institutions, laws, and legal actors that extends well beyond police, courts, and prisons. And that means that the problems with the criminal system—its social and economic costs, its racially disparate impact, etc.—implicate actors who are not formal state actors and who are not formal officers of the criminal system.
William Stuntz famously argued that the expansiveness and punitive nature of the criminal law were the products of a particular political economy.268 Stuntz claimed that the electoral incentives of prosecutors, legislators, and judges combined to make criminal law a one-way ratchet, yielding a larger and harsher criminal system.269 These “pathological politics” had driven an explosion in prison populations and a criminal system that had grown to an unprecedented size.270 What is remarkable when we consider criminal employment law, though, are the ways in which criminal law’s pathological politics and troubled incentives bleed out of the elected branches, and even out of the formal confines of the criminal system. To appreciate the current state of the criminal system requires stepping outside of the scope of Stuntz’s frame and recognizing that the private market and private market actors continue to replicate and re-inscribe the harms of the criminal law. The issue is less that private actors are necessarily worse for criminal defendants, for justice, or for the operation of the criminal system. Rather, it’s that if these private actors play an important role in the functioning of the criminal system, they should be treated accordingly.
B. Public Employment Law
Much as the criminal law has metastasized, so too has the role and function of employers as purveyors of social services and as the vehicle by which social and economic policy is implemented. In this respect, criminal employment law is also transforming the employment relationship and the limits of employee privacy. Writing in 1991, Vivian Berger, then-General Counsel to the American Civil Liberties Union, predicted a future in which the greatest threats to civil liberties might come not only from the state, but also from private actors:
Above all, business organizations have come to assume a hegemony over their workers’ lives rivaling that of the national government at the time the Bill of Rights was adopted. Technology has greatly enhanced this power: many companies routinely monitor employee phone calls and other activities by means of electronic devices or require intrusive polygraph tests before or during the course of employment. Increasingly, too, in order to reduce . . . costs or for other self-interested reasons, employers are attempting to control the personal lives of workers.271
Criminal employment law is a powerful indicator that such a future already has arrived.272
Employment law and the employment relationship have long occupied a peculiar place at the boundaries of public and private.273 And the contours of the distinction have long been manipulated to justify varying degrees of judicial intervention in employment contracting.274 Prior to the New Deal moment, courts and legislators treated employment as the product of a private relationship between employer and employee.275 This approach meant that courts and legislators viewed the enforcement of contracts as their province, but shied away from or outwardly disclaimed the public or social implications of private orderings.276 Employment was regarded as a “dominant-servient relation rather than one of mutual rights and obligations.”277 Under such a conception of employment, “[t]he employer, as owner of the enterprise, is viewed as owning the job with a property right to control the job and the worker who fills it. . . . The employer is sovereign over his or her employee subjects.”278 There was no place for public considerations or for a treatment of the contract as embedded in or shaping the social, economic, and political conditions of the public sphere.279
The New Deal moment saw a reimagining of the employment relationship. To the new school of legal realist scholars, all law was public.280 Contracting parties negotiated against a set of background rules—distributions of power and property created by political decisions, rather than a natural, “free” market.281 Where courts had previously struck down employment regulations as impinging on the constitutional right to freedom of contract,282 the Court began to adopt more of a realist approach and shifted away from the clean, formalist public/private distinction in regulating the workplace.283 The New Deal era saw the passage of statutes that regulated the terms and conditions of employment, and ensuing decades have seen a range of such statutes erode further at-will employment and the Lochner-era conception of employment as private.284 But, aspects of the earlier conception of employment remain: employers can generally fire employees without cause,285 and, as the discussion in Part II highlighted, courts and legislatures still defer to the preferences and business interests of employers.286 That is, if the categories retain any descriptive or theoretical value, employment law is at once private and public.
This is an oversimplified account of employment law’s development and the shift away from a purely private conception of employment law. But this history is important to understanding the significance of criminal employment law’s place in the current public/private model. Criminal employment law is both public and private in two ways: (1) it is subject to statutory regulation, but it is also the province of private agreements; and (2) it is premised on the belief that employers should (or, at least, can) serve the public interest, but it also depends on a view of employment where employers are allowed to prioritize their own private business interests. The first public/private point is simply a restatement of the realist claim about the public/private distinction and is true of most areas of the law.287 Therefore, it does not require further discussion. But the second represents a new approach to employment regulation—an approach that criminal employment law exemplifies.
A central claim of this Article is that criminal employment law makes employers complicit in certain aspects of the criminal system. That is, the tort doctrines, combined with the statutory licensing schemes and public consumer support for employer discipline of workers, has led to a system in which employers effectively serve a public function. By situating this “private punishment” within a broader frame of privatization literature,288 I hope to emphasize the ways in which the ends of criminal employment law map onto the aims of criminal punishment. In carrying out these ends, though, employers may well engage in a range of practices that vitiate worker privacy (e.g., email searches, GPS tracking, exhaustive background checking, and extensive limitations on conduct away from work).289 And, while public-sector employees enjoy some Fourth and First Amendment protections,290 private-sector employees do not and have limited recourse at common law.291 To the extent that employee conduct policies reach conduct away from work, employers may exercise an almost unlimited jurisdiction to impose the moral force of criminal (or quasi-criminal) law.292
Therefore, employers take on public responsibility that justifies intrusions into worker privacy and exacerbates the imbalance of workplace power relations. At the same time, employers remain private, unchecked by the Constitution, and shielded from liability by judicial deference to the same private values of workplace efficiency and business-owner autonomy that justified the pre-realist freedom of contract cases.293 To the extent that we are uncomfortable with the idea of private employers being treated as state actors, unshielded by their private status, it is worth asking why. And, if it wouldn’t make sense to treat private employers as state actors for liability purposes, then why does it make sense to allow them to take on state functions?
Richard Epstein has argued in favor of employment at will as more protective of individual rights.294 By this logic, the real concern for workers should be the state; a legal system that makes it easier to get in and out of contractual relationships is one that maximizes the power of private actors, and therefore maximizes liberty.295 Without rehashing the realist/formalist debates of the 1930s,296 I think it is important to emphasize the ways in which criminal employment law undermines Epstein’s argument. If the concern is state power, then what happens when it becomes harder to distinguish between the private and the public, the employer and the state? That is, even if we were prepared to accept Epstein’s dismissal of realist concerns for background rules, his argument appears to be premised on a belief that employers and employees are seeking to maximize profits or efficiency, not that they are seeking to enforce broader conceptions of morality. To the extent that employers are acting to advance quasi-public punitive goals, then why should we be less concerned by these private actors than by the state? Or, even if we accept that state punishment is more severe than private punishment so that we should be more concerned, why does it follow that we shouldn’t still worry about the disciplining power of employers?
When considering employer power and employers’ function within the system of criminal employment law, it is worth considering the costs to employers as well as employees that such a regime creates. Whether criminal employment law empowers employers or burdens them is not entirely clear. Certainly, as discussed in the context of conduct policies, some criminal employment law institutions (and some public calls to action) empower employers and grant them even more authority over workers. But, as discussed above, tort doctrines impose clear burdens on employers and expose them to liability if they fail to take account of criminal histories.297 Similarly, the range of occupational licensing statutes and regulations restrict who an employer may hire.298 And, as noted in the context of employee conduct policies, consumers and clients often hold employers responsible for the conduct of their employees, even conduct with little to no relationship to work or the workplace.299 Combine these burdens with some of the reform proposals discussed earlier, and it is easy to see how employers are often left between a rock and a hard place. Hiring or retaining those with criminal records may, in some cases, trigger civil suits or state regulatory action, while, in other cases, refraining from doing so might prompt EEOC action. Put simply, the disparate and internally inconsistent web of criminal employment law may well whipsaw employers,300 forcing them to choose a least-worst option when presented with possible sources of liability.301
Ultimately, though, intention need not be an essential component of our analysis. If we are concerned with effects (as most collateral consequences literature is),302 then what matters most is the impact that the decisions have, not the motivations that drive the decisions. That is, employers might be acting wholly rationally or their motives and preferences might be sympathetic. But, if the problem with criminal employment law is that it has shifted decision-making to unaccountable actors and has extended the scope of punishment, then it should matter relatively little whether those unaccountable actors are right or wrong when they make decisions.
In this respect, employer intent might be a red herring that distracts from the risks posed and harms done by criminal employment law. Attempting to show animus (or lack thereof) removes focus from the effects of the doctrines and institutions described in this Article. As I noted at the outset, one goal of this Article is to begin to understand why criminal employment law exists—i.e., what incentives and ideologies shape employer decisions and legal rules. But focusing too much on individual employers as good or bad actors obscures the broader structural forces that shape their decisions. Indeed, one of the problems with a number of the narrow fixes discussed in Part III is that they are responsive to individual acts or individual actors, rather than the underlying structures of inequality that define both the criminal legal system and the labor market.303
In calling for broader structural solutions to the problems of workplace inequality, Samuel Bagenstos has argued that “[w]e have reached, or will soon reach, the limits of what our current conception of employment discrimination law can do to solve the persistent problems of workplace inequity.”304 That is, “[m]any of today’s most significant problems are structural and are widely understood to lie beyond the responsibility of individual employers.”305 Regardless of whether Bagenstos is right about the effectiveness of Title VII suits as a form of impact litigation,306 his underlying insight resonates here. Each employer is only one component of a broader social, economic, and political system. The problems of criminal employment law are broader structural problems that implicate the inequality of bargaining power and the social and economic conditions of those with criminal records.307
Criminal employment law tells us about more than the lack of employee privacy and the lack of a clear line between public and private. It illustrates the power imbalance of the modern workplace. In examining the rise of employer email monitoring, Rosa Ehrenreich Brooks describes the problem as “a power issue that stems both from the deep structure of American employment law and from the economic and social framework of our society more broadly.”308 Because a fired worker will suffer “some tangible and extremely unpleasant economic harms,”309 any doctrine or legal institution that allows employers to monitor or discharge furthers the liminality of a vulnerable or marginal worker. In Brooks’s frame, each policy
is only a symptom. The problem is that despite the erosion of at-will employer traditional privileges, most American workers have very little power in relation to their employers. Most can be fired for an astonishingly large number of reasons and can have an awful lot of their rights infringed upon with impunity. The solution to this problem is not the creation of laws or policies forbidding e-mail monitoring by employers, although that would be helpful as a first step. The solution would involve a radical overhaul of employment law.310
This Article does not purport to offer a vision for what such an overhaul would entail. But Brooks’s insight is critical to understanding what is wrong with criminal employment law. Entrusting private employers with enforcing criminal law has costs for the criminal system, but it also has costs for individual workers who face a system of almost-unchecked employer discipline—a system in which unaccountable actors are tasked with weeding out the good from the bad and imposing their own brand of punishment.
Conclusion
This Article has argued that criminal employment law is transforming the nature of the employment relationship and the delivery of criminal punishment. This hybrid public/private and civil/criminal institution exacerbates both the punitive turn in criminal law and the marginalization of those with criminal records. Like many questions of criminal justice reform, the best policy solution is not immediately apparent. As I have shown, there are a range of possible solutions already on the table, but each of them has its weaknesses—weaknesses that show how and why criminal employment law is becoming an intractable problem in the U.S. labor market.
“We have become a nation of employees,” observed sociologist Frank Tannenbaum in 1951.311 Because of the reliance on wages and the relationship between employment and social and economic benefits, “the substance of life is in another man’s hands.”312 Criminal employment law shows us the costs of a continued reliance on such a model not only for delivering benefits, but also for imposing punishment.