Criminal Employment Law

58 Pages Posted: 3 Apr 2017 Last revised: 5 Apr 2017

Benjamin Levin

Harvard Law School

Date Written: April 1, 2017

Abstract

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 justice system. But private employers act without constitutional or significant structural checks. Therefore, I argue that the criminal justice 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.

Keywords: criminal law, collateral consequences, sentencing, employment law, tort law, employment discrimination, theories of punishment, privatization, negligent hiring, ban the box, employee conduct policies

JEL Classification: J21, J7, K13, K14, K42

Suggested Citation

Levin, Benjamin, Criminal Employment Law (April 1, 2017). Cardozo Law Review, Forthcoming; Harvard Public Law Working Paper No. 17-05. Available at SSRN: https://ssrn.com/abstract=2944840

Benjamin Levin (Contact Author)

Harvard Law School ( email )

1525 Massachusetts
Griswold 120
Cambridge, MA 02138
United States

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