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This fact sheet is a tool for advocates, workers, and policymakers to use in efforts to create safer and more equitable workplaces.
The criminal legal system shapes labor market participation and employment stability. It pushes the labor market toward further exploiting the work of incarcerated people and people with records, lowering the floor for all workers.
Criminalization continues to impact a worker long after incarceration. Even for those who manage to secure a source of income, having a record erodes wages and drives up poverty among workers with records and their families.[i] Employer bias against job applicants with records—intertwined with racism and classism—translates into fewer and worse job opportunities. Parole, probation, and other court-supervision programs compound this problem by regularly mandating some form of work or searching for work as a condition of release from incarceration.[ii] As a result of the threat of re-incarceration, criminal legal debt, employer bias, and other economic stressors, workers with records are generally expected to accept undesirable, low-paying jobs and not complain about exploitative working conditions.[iii]
Prisons, jails, and migrant detention camps are workplaces, and incarcerated people are workers. Incarceration removes individuals at risk of joblessness and under-employment from the labor force. The Bureau of Labor Statistics (BLS) does not include incarcerated people in its measure of unemployment, under-employment, or joblessness. For instance, federal data reveals that the labor force participation rate for Black men (64.4 percent) is lower than that of white men (67.8 percent), but, in reality, that disparity is more stark because of the exclusion of racially targeted incarceration.[iv] With more than two million Black men incarcerated, and with Black men disproportionately targeted in their prime working age, their exclusion from BLS data obfuscates any assessment of the U.S. labor market’s claims of achievement in race equity and economic security.[v]
Incarceration is often used as workforce training. Through wage-less and under-waged prison labor programs, people who experience incarceration are conditioned to expect less pay and benefits in the labor market after release.[vi] After incarceration, many people with records are statutorily barred from obtaining various occupational licenses and holding a variety of jobs, including as staff for labor unions.[vii] Taken together, these lowered expectations and limited opportunities reduce worker power by undermining the social cohesion of workers against bosses and management.
Incarcerated workers have a long history of organizing, resistance, and uprising, including in the form of labor unions. They continue to advocate for many of the demands of incarcerated worker movements during the civil rights era of the 1960s and 1970s. Calls for fair labor practices, union representation, and an end to racism remain pillars in their fight for economic justice.[viii]
Below are research and data points that illuminate the criminal legal system’s role in shaping work.
Because of massive investments in a legal system that criminalizes people of color, Black, Latinx, and Indigenous people are much more likely to be incarcerated and/or have a record.
Across the nation, working people of color are segregated into the lowest paid, least stable, and most dangerous jobs, perpetuating racial wage gaps and exacerbating the racial wealth gap.
Excluding workers with records from good jobs contributes to a racially segregated workforce. Both employer bias and government policies contribute to that outcome.
The stigma of a record frequently destroys employment prospects, especially for Black workers.
While access to employment is important, it is not a panacea to equity for formerly incarcerated people. Job quality is critical.
Systemic workforce disadvantages and labor abuses—including retaliation, wage theft, and lack of safety protocols—emerge for workers while they are still confined. Incarcerated people are workers, and jails, prisons, and migrant detention camps are workplaces that exploit them as part of the legacy of slavery.
The policy advocacy and direct action of currently and formerly incarcerated workers builds worker power, thereby helping to raise the floor for all workers and create a more equitable labor market.
To learn more about the intersection of the criminal system and work, please see NELP’s policy brief, “Worker Power in the Carceral State: 10 Policy Proposals Against the Criminalization of Workers.”
[i] Over the course of an entire career, the Brennan Center estimates that Black workers with an arrest or conviction record earn $37,000 on average annually, while similarly situated white workers with an arrest or conviction record earn $49,000. Black workers without an arrest or conviction record earn $39,000 on average annually, while similarly situated white workers without an arrest or conviction record earn $52,000. Terry-Ann Craigie, Ames Grawert, Cameron Kimble, Brennan Center for Justice, Conviction, Imprisonment, and Lost Earnings, September 2020, https://www.brennancenter.org/our-work/research-reports/conviction-imprisonment-and-lost-earnings-how-involvement-criminal.
[ii] Han Lu, Laura Padin, Maya Pinto, NELP, Local 79 Fights the Criminalization of Laborers, May 2021, https://www.nelp.org/publication/local-79-fights-the-criminalization-of-laborers/. See also, Josh Seim and David J. Harding, “Parolefare: Post-prison Supervision and Low Wage Work,” RSF: Journal of the Social Sciences, April 2020, https://www.rsfjournal.org/content/6/1/173; Jesse Jannetta, Justin Breaux, Helen Ho, The Urban Institute, Examining Racial and Ethnic Disparities in Probation Revocation, April 2014, https://www.urban.org/sites/default/files/publication/22746/413174-Examining-Racial-and-Ethnic-Disparities-in-ProbationRevocation.PDF.
[iii] “When you’re released on parole you have to work in unsafe conditions and walk on eggshells. If you breathe wrong, you’re fired and that’s a violation of your parole. These body shops know this and exploit it.” Duane Townes, former body shop laborer and member of Laborers’ Local 79 Fight Back Campaign, Real Reentry for New York, https://www.realreentry.org/.
[iv] US Bureau of Labor Statistics, “Employment status of the civilian population by race, sex, and age,” July 2022, https://www.bls.gov/news.release/empsit.t02.htm.
[v] Sandra Susan Smith and Jonathan Simon, “Exclusion and Extraction: Criminal Justice Contact and the Reallocation of Labor,” RSF: The Russell Sage Foundation Journal of the Social Sciences, March 2020, https://www.rsfjournal.org/content/rsfjss/6/1/1.full.pdf.
[vi] “After years of working for pennies on the dollar inside, twelve dollars an hour sounds great to someone coming out of prison – even if you could never make the costs of living in New York City with that pay,” Bernard Callegari, Lead Organizer and member of Laborers Local 79 Fight Back Campaign, Real Reentry for New York, https://www.realreentry.org
[vii] The Labor Management Reporting and Disclosure Act (LMRDA) imposes a thirteen-year prohibition against labor union employment for people with specific convictions; See 29 U.S.C. §504(a). Office of Labor-Management Standards (OLMS), U.S. Dept. of Labor, OLMS Fact Sheet: Prohibition Against Certain Persons Holding Union Office or Employment (Mar. 2013), https://www.dol.gov/olms/regs/compliance/504unionoffholdempl.pdf”
[viii] Ann Arbor Sun, “Support Jackson Prisoners’ Self-Determination Union!!” (July 7, 1972).
[ix] The Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons (2016), https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons; The Nat’l Judicial College, “Most Judges Believe the Criminal Justice System Suffers from Racism,” July 14, 2020, https://www.judges.org/newsand-info/most-judges-believe-the-criminal-justice-system-suffers-from-racism/.
[x] The Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons (2016), https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons.
[xi] Sarah K. S. Shannon, et al., The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948-2010, 54 Demography 1795 (2017) (using 2010 data).
[xii] Studies demonstrate that, for example, while rates of drug usage are essentially equal among white and Black populations, arrests and convictions for drug offenses are much higher in the Black community. The Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons (2016), https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons. See also The Hamilton Project, “Chart: Rates of Drug Use and Sales, by Race; Rates of Drug Related Criminal Justice Measures, by Race” (2016), https://www.hamiltonproject.org/charts/rates_of_drug_use_and_sales_by_race_rates_of_drug_related_criminal_justice.
[xiii] Elise Gould, Economic Policy Institute, “State of Working America Wages in 2019” (February 2020). https://www.epi.org/publication/swa-wages-2019/
[xiv] Laura Huizar & Tsedeye Gebreselassie, National Employment Law Project, What a $15 Minimum Wage Means for Women and Workers of Color (Dec. 2016), https://www.nelp.org/wp-content/uploads/Policy-Brief-15-Minimum-Wage-Women-Workers-of-Color.pdf. As another example, Black and Latinx workers are overrepresented in temporary staffing work. Black workers comprise 12.1 percent of the overall workforce but 25.9 percent of workers employed by temporary staffing agencies. Latinx workers comprise 16.6 percent of all workers, but 25.4 percent of workers employed by temporary staffing agencies. National Employment Law Project, America’s Nonstandard Workforce Faces Wage, Benefit Penalties, According to U.S. Data (June 7, 2018), https://www.nelp.org/news-releases/americas-nonstandard-workforce-faces-wage-benefitpenalties-according-us-data/.
[xv] Darrick Hamilton, et al., Economic Policy Institute, Whiter Jobs, Higher Wages: Occupational Segregation and the Lower Wages of Black Men (2011), https://files.epi.org/page/-/BriefingPaper288.pdf.
[xvi] Natasha Hicks, et al., Insight Ctr., Still Running Up the Down Escalator (2021), https://insightcced.org/still-running-up-the-down-escalator/.
[xvii] OLMS, supra at 7.
[xviii] Christy Visher, Sara Debus, Jennifer Yahner, “Employment after Prison: A Longitudinal Study of Releases in Three States” (October 2008), https://www.urban.org/sites/default/files/publication/32106/411778-Employment-after-Prison-A-Longitudinal-Study-of-Releasees-in-Three-States.PDF
[xix] Alliance for Safety & Justice, “Toward Shared Safety: The First-Ever National Survey of America’s Safety Gaps” (2020), https://allianceforsafetyandjustice.org/wp-content/uploads/2020/09/NatlSafetyGaps-Report-PREVIEW-20200908-1751.pdf
[xx] See, e.g., Michelle Natividad Rodriguez & Beth Avery, National Employment Law Project, Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Records (2016), https://www.nelp.org/publication/unlicensed-untapped-removing-barriers-state-occupational-licenses/.
[xxi] Scott H. Decker, Cassia Spohn, Natalie R. Ortiz, Eric Hedberg, Criminal Stigma, Race, Gender and Employment: An Expanded Assessment of the Consequences of Imprisonment for Employment, (January 2014), https://www.ojp.gov/pdffiles1/nij/grants/244756.pdf.
[xxii] Devah Pager, The Mark of a Criminal Record, 108 Am. J. Soc. 937, 957–58 (2003). The callback rate for white applicants halved from 34 to 17 percent when they revealed a record. The callback rate for Black applicants dropped by nearly two-thirds, from 14 to 5 percent, when they revealed a record. Id. Underlining the potency of anti-Black racism, the study also found that white applicants with records received a higher rate of callbacks than Black applicants without a record. Id.
[xxiii] Dallas Augustine, Noah Zatz, Naomi Sugie, UCLA, Why Do Employers Discriminate Against People with Records? Stigma and The Case for Ban the Box, (July 20, 2020), https://irle.ucla.edu/publication/why-do-employers-discriminate-against-people-with-records-stigma-and-the-case-for-ban-the-box/.
[xxiv] Lucius Couloute and Daniel Kopf, Out of Prison and Out of Work: Unemployment among formerly incarcerated people, (July 2018), https://www.prisonpolicy.org/reports/outofwork.html.
[xxv] Prison Policy Initiative, “New data on formerly incarcerated people’s employment reveal labor market injustices” (2022), https://www.prisonpolicy.org/blog/2022/02/08/employment/ (citing E. Ann Carson, et al., Bureau of Justice Statistics, “Employment of Persons Released from Federal Prison in 2010” (2021), https://bjs.ojp.gov/content/pub/pdf/eprfp10.pdf).
[xxvi] Couloute, Kopf, supra at 25.
[xxvii] Couloute, Kopf, supra at 25.
[xxviii] Grey Gordon & Urvi Neelakantan, Fed. Rsrv. Bank of Richmond, “Incarceration’s Life-Long Impact on Earnings and Employment” (Mar. 2021), https://www.richmondfed.org/publications/research/economic_brief/2021/eb_21-07; Terry-Ann Craigie, et al., Brennan Ctr. For Justice, Conviction, Imprisonment, and Lost Earnings 14 (Sept. 15, 2020), https://www.brennancenter.org/sites/default/files/2020-09/EconomicImpactReport_pdf.pdf.
[xxix] Terry-Ann Craigie, et al., Brennan Ctr. For Just., Conviction, Imprisonment, and Lost Earnings 14 (Sept. 15, 2020), https://www.brennancenter.org/sites/default/files/2020-09/EconomicImpactReport_pdf.pdf.
[xxxi] Naomi F. Sugie, Finding Work: A Smartphone Study of Job Searching, Social Contacts, and Wellbeing After Prison (Sept. 2014), https://www.ojp.gov/pdffiles1/nij/grants/248487.pdf. In a Bureau of Justice Statistics study, formerly incarcerated people held an average of 3.4 jobs over the four years after their release. Prison Policy Initiative, “New data on formerly incarcerated people’s employment reveal labor market injustices” (2022), https://www.prisonpolicy.org/blog/2022/02/08/employment/.
[xxxii] Smith & Broege, “Searching for Work with a Criminal Record” (2019), https://irle.berkeley.edu/finding-employment-after-contact-with-the-carceral-system/
[xxxiii] Laura Padin, National Employment Law Project, Temping Out: Reforming Law and Programs to Cultivate Stable and Secure Jobs, (March 23, 2020), http://www.nelp.org/publication/eliminating-structural-drivers-temping-reforming-laws-programs-cultivate-stable-secure-jobs/.
[xxxiv] Han Lu, Laura Padin, testimony in support for Bill 2318-2021, Licensing for Labor Brokers (September 2021), https://s27147.pcdn.co/wp-content/uploads/NELP-Testimony-Support-for-Bill-2318-2021-Licensing-of-Labor-brokers.pdf
[xxxv] Prison Policy Initiative, “New data on formerly incarcerated people’s employment reveal labor market injustices” (2022), https://www.prisonpolicy.org/blog/2022/02/08/employment/.
[xxxvi] Han Lu, et al., National Employment Law Project, Local 70 Fights the Criminalization of Laborers (Apr. 2021), https://www.nelp.org/publication/local-79-fights-the-criminalization-of-laborers/.
[xxxvii] Han Lu, National Law Employment Law Project, Worker Power in the Carceral State: 10 Policy Proposals Against the Criminalization of Workers, (August 25, 2022), http://www.nelp.org/publication/worker-power-in-the-carceral-state-10-policy-proposals-against-the-criminalization-of-workers/.
[xxxviii] Alicia Bannon, Mitali Nagrecha, Rebekah Diller, Brennan Center for Justice, Criminal Justice Debt: A Barrier to Reentry, (2010), https://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf.
[xxxix] Twenty-seven percent of incarcerated parents of minors owe child support; 80 percent owe back pay. See Prison Policy Initiative, “Both Sides of the Bars: How Mass Incarceration Punishes Families” (2022), https://www.prisonpolicy.org/blog/2022/08/11/parental_incarceration/.
[xl] American Civil Liberties Union and The University of Chicago Law School Global Human Rights Clinic, Captive Labor: Exploitation of Incarcerated Workers, (2022), https://www.aclu.org/sites/default/files/field_document/2022-06-15-captivelaborresearchreport.pdf
[xli] Wendy Sawyer, Prison Policy Initiative, How much do incarcerated people earn in each state?, (April 10, 2017), https://www.prisonpolicy.org/blog/2017/04/10/wages/.
[xlii] ACLU, Univ. of Chicago Law School, supra at 41.
[xliii] John Cheves, Lexington Herald Leger, “Why were jail inmates working in the Mayfield candle factory when the tornado hit?” (December 16, 2021) https://www.kentucky.com/news/politics-government/article256632811.html. Jared Bennett, 89.3 WFPL, “Mayfield candle factory’s labor practices under scrutiny in wake of deadly tornado,” (December 13, 2021), https://wfpl.org/mayfield-candle-factorys-labor-practices-under-scrutiny-in-wake-of-deadly-tornado/.
[xliv] Jacqueline Stevens, Georgetown Immigration Law Journal, volume 29, issue 3, One Dollar Per Day: The Slaving Wages of Immigration Jail, From 1943 to Present, (Spring 2015, published 2016), https://jacquelinestevens.org/Stevens-Dollar-Per-Day-GeoILJMay-2016.pdf.
[xlv] Rebecca Harris, Living-Wage Hiring Halls: A Model Solution for Improving Job Quality, (April 2017), https://socialinnovationsjournal.org/sectors/92-nonprofit-community/2430-living-wage-hiring-halls-a-model-solution-for-improving-job-quality. Latino Union of Chicago, Albany Workers Center, https://www.latinounion.org/albany-park-workers-center.
[xlvi] Essie Justice group, see “What We Do” page, https://essiejusticegroup.org/what-we-do/policy/.
[xlvii] AFL-CIO New York City Central Labor Council, (November 12, 2021), (press release),NYC Council Passes Groundbreaking Bill Regulating Exploitative Construction Industry Body Shops, https://www.nycclc.org/news/2021-11/nyc-council-passes-groundbreaking-bill-regulating-exploitative-construction-industry. Full bill text of NYC law 2318-2021 can be found here: https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=4966517&GUID=23CA198A-0612-439D-AB54-14065535D735
[xlviii] CA Collaborative for Immigrant Justice, (press release), Detained Labor Strikers Sue GEO Group Over $1-A-Day Pay,(July 14 2022) https://www.ccijustice.org/post/breaking-detained-labor-strikers-sue-geo-group-over-1-a-day-pay. Farida Jhabvala Romero, KQED, ICE Detainees Making $1 a Day Sue Over Alleged Wage Theft, (July 16, 2022), https://www.kqed.org/news/11919749/ice-detainees-making-1-a-day-sue-over-alleged-wage-theft.
[xlix] Gene Johnson, GEO ordered to pay $23.2M in detainee minimum wage cases, (November 2, 2021), https://apnews.com/article/immigration-business-lawsuits-washington-minimum-wage-85ddafe57d77f80e8c0f5359ca8e645d. Center for Human Rights University of Washington, Conditions at the NWDC: Reporting of Sexual Abuse and Assault, (May 16, 2022), https://jsis.washington.edu/humanrights/2022/05/16/nwdc-assault-abuse-reporting/.