Criminal Employment Law

Benjamin Levin, 39 Cardozo Law Review 6

(August 2018)
Criminal Employment Law article cover image

This article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. According to the author, 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 also 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, the author asserts, private employers effectively operate as a branch of the criminal justice system. But, the author continues, private employers act without constitutional or significant structural checks. As such, the author argues that the criminal justice system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment.

The article further asserts that 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.