59 Pages Posted: 3 Apr 2017 Last revised: 27 Sep 2017
Date Written: April 1, 2017
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, privacy, reentry
JEL Classification: J21, J7, K13, K14, K42
Suggested Citation: Suggested Citation
Levin, Benjamin, Criminal Employment Law (April 1, 2017). Cardozo Law Review, Forthcoming; Harvard Public Law Working Paper No. 17-05; U of Colorado Law Legal Studies Research Paper No. 17-5. Available at SSRN: https://ssrn.com/abstract=2944840