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Get To Work or Go To Jail - Workplace Rights Under Threat, UCLA, 2016

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UCLA Institute for Research on Labor and Employment
UCLA Labor Center
A New Way of Life Reentry Project

RESEARCH BRIEF |MARCH 2016

Get To Work or
Go To Jail:
Workplace Rights
Under Threat
Contributors: Noah Zatz, Tia Koonse, Theresa Zhen, Lucero
Herrera, Han Lu, Steven Shafer, and Blake Valenta

Introduction
Federal, state, and local governments increasingly make, and carry
out, a disturbing threat: get to work or go to jail. When resisting an
employer’s terms can lead to imprisonment, employers gain a dangerous
advantage. Workers under threat of incarceration for unemployment
cannot afford to refuse a job, quit a job, or challenge their employers—
and they can even be forced to work for free. This report identifies
how the criminal justice system endows employers with this power.
Criminal justice scholars and advocates have identified three phenomena
at the intersection between employment and incarceration. These
include (1) barriers to employment following run-ins with the criminal
justice system, (2) prison labor, and (3) modern-day debtors’

prisons, such as those in Ferguson, Missouri,1 which have gained
increasing notoriety in recent years. This report examines a much
less understood phenomenon, one we suggest carries drastic
consequences for criminal justice reformers and labor advocates
alike: what happens when the criminal justice system compels labor
from unincarcerated workers and locks people into bad jobs?
This threat—work or jail—can be invoked in several ways. We focus
on three distinct but related sources of legal authority that enable
government to make this threat. First, probation and parole
require participants to seek and maintain employment as part of a
set of standard conditions. Probationers and parolees perceived to
violate these conditions may be incarcerated instead of remaining
free. Second, courts may demand that people work when they are
too poor to pay criminal justice debts from the fines, fees, and
restitution imposed by the criminal justice system. Finally, courts
may likewise order parents that are too poor to pay child support
to find and maintain jobs or face jail as a consequence. Criminal
justice debt and child support obligations cannot be erased in
bankruptcy, and those who can’t pay face incarceration. Debtors can
be ordered to find a job, a second or third job, or a even a betterpaying job if their present income leaves them unable to pay.
Because little research exists on incarceration for failure to
work, this report makes novel use of existing national survey
datasets to produce new national estimates. Where possible,
we provide estimates specific to California. We find:

1. The threat of jail is real.
On any given day, roughly 9,000 people nationwide
are incarcerated for violating a probation or parole
requirement to hold a job. In major cities, 5% of all fathers
are incarcerated for falling behind on child support.

2. These individuals are low-wage workers.
Of those incarcerated solely for violating probation or parole
requirements to pay court-ordered debts, two-thirds reported
full-time work, earning on average less than $1,000 per month.
Among fathers incarcerated for failing to pay child support, 95%
worked in the previous year and 85% lived in or near poverty.

2 | GET TO WORK OR GO TO JAIL

3. Many are forced to work for free.
In Los Angeles alone, 50,000 - 100,000 people each year
must perform unpaid, court-ordered community service
often to work off criminal justice debt. State and municipal
governments and nonprofits get a stream of free labor from
individuals who may have to work for hundreds of hours.

4. People of color bear the brunt of these threats.
Black and Latino people comprise two-thirds of those
incarcerated solely for violating probation or parole
conditions related to employment or payment of debt.
African Americans fathers comprise nearly 80% of those
incarcerated by the child support enforcement system and are
incarcerated at a rate ten times higher than other fathers.

These findings should cause criminal justice reformers to consider
the implications of community service, work programs, and work
requirements as alternatives to incarceration. When the alternative
to incarceration is mandatory work, the alternative to debtors’ prison
is debt peonage. So, too, should advocates of workers’ rights treat
mass incarceration and criminal justice reform as labor issues.
We suggest the threat of incarceration tilts the balance
of power even further towards employers and can
undermine workers’ rights in the following four ways.

1. Depressing labor standards.
Workers face government pressure to lower their standards and
to accept jobs with onerous or dangerous working conditions.

2. Suppressing worker voices.
Workers who speak up for themselves or organize collectively
encounter employers who can retaliate not merely by firing
them, but by enlisting law enforcement to send them to jail.

3. Evading legal protections.
Workers laboring under the threat of incarceration may be stripped
of standard employment protections like the minimum wage,
workers compensation, and the right to be free from discriminatory

GET TO WORK OR GO TO JAIL | 3

practices—especially in unpaid, court-ordered community service.

4. Undermining or displacing other workers.
Employers can replace existing workers with workers
threatened with incarceration. This forces workers to accede
to degraded working conditions or face losing their jobs.

The work-or-jail threat adds the weight of the criminal justice system
to employers’ power, and turns the lack of good jobs into the basis for
further policing, prosecution, and incarceration. Both effects amplify the
racial stratification that plagues criminal justice and low-wage work alike.
The directive “get to work or go to jail” has received little attention
from the perspective of workers’ rights. This report makes the
first effort to grasp the scale of this problem and its effect on the
workplace. In Section I, we explain the three sources of legal power
for the government to threaten “get to work or go to jail.” We
provide concrete examples, a rough sense of scale, and evidence
of the stratification of this mandate by race and class. In Section
II, we focus on how these threats can undermine the rights of all
workers, regardless of whether they personally face these threats.

I. How the Law Threatens “Get
To Work or Go To Jail”
A . Probation and Parole
Probation and parole are major sources of directives to “get to work
or go to jail”. Nearly 5 million Americans and 400,000 Californians
are under one of these forms of supervision. 2 Individuals in these
programs are not confined to a prison or jail, but must obey a wide
array of rules to remain free. If these rules are violated, probation or
parole may be revoked and replaced with incarceration. Similar rules
also apply in related forms of criminal justice supervision, including
“diversion” programs,3 and all of these forms of supervision are
increasingly offered as progressive alternatives to incarceration.
Conditions of criminal justice supervision almost always include

4 | GET TO WORK OR GO TO JAIL

pursuing and maintaining employment,4 and workers can be
imprisoned for refusing certain kinds of work, for quitting,5 and
even for being fired.6 Conditions also frequently include paying
down child support and criminal justice debt, and a failure to do so
can be punished as a violation of probation or parole. As we explain
below, these duties to pay are also regarded as duties to work.
Those under criminal justice supervision frequently go to
jail or prison for failing to meet conditions related to work
and debt. On any given day in the U.S., about 9,000 people are
incarcerated for violating a probation or parole requirement
to hold a job, and 32,000 are incarcerated for violating a
requirement to pay down a debt.7 Given California’s share of the
probation and parole population, several thousand Californians
may be incarcerated each year for work-related violations.

About 9,000 people
are incarcerated
for violating a
probation or parole
requirement to hold
a job, and 32,000
are incarcerated
for violating a
requirement to
pay down a debt.

Data strongly suggest that those incarcerated for violating workrelated conditions are unable to find adequate employment.
For example, about half reported having a job in the month before
incarceration, suggesting that they were being pressed to work
more.8 Another quarter reported being unemployed while looking
for work.9 Even among those incarcerated solely for nonpayment
of court-ordered debt, two-thirds reported full-time work
in the month before incarceration—but mostly with earnings
below $1,000 per month.10 In other words, these are largely lowincome workers, and are neither people outside of the labor
market nor those who have high incomes and yet refuse to pay.
Data also suggest stark racial disparities in enforcing these
work conditions. Black and Latino inmates comprise three-fifths
of all those incarcerated for probation or parole violations—and
a shocking two-thirds of those incarcerated solely for violating
conditions related to work (employment or payment of debt).11
African Americans comprise 40% of all those incarcerated as
probation/parole violators, yet nearly 70% of those incarcerated
solely for failing to be employed. These disparities are consistent
with research showing that racial bias is most extreme in
circumstances that directly link racial stereotypes to work effort.12
In conclusion, parole and probation condition freedom on a set
of requirements that almost always include employment and
paying criminal justice debt or child support. In practice, when

GET TO WORK OR GO TO JAIL | 5

the work-or-jail threat is carried out, thousands are incarcerated
for insufficient employment. Among them, the vast majority
have been working, but these jobs are inadequate to satisfy
these requirements. Additionally, a starkly disproportionate
number of Black and Latino workers are impacted.

B. Criminal Justice Debt
Any encounter with the criminal justice system can incur debt that
creates a work-or-jail threat, and this can arise entirely outside
probation or parole. Cash-strapped states have increasingly turned to
“user fees” to fund their criminal justice systems, in addition to fines and
restitution imposed by a judge as part of a criminal sentence. States now
charge defendants for probation supervision, jail stays, and even the use
of a constitutionally-required public defender.13 In 2014, the California
legislature calculated more than $11 billion in uncollected court-ordered
debt.14 Many low-level infractions, like traffic violations, are punished by
high fines, surcharges and “penalty assessments,” which, when paid by
defendants, are earmarked for state funds like the Court Construction
Fund. California actually imposes an additional fee when you cannot
pay your existing debt.15 More than 4 million California driver’s licenses
have been suspended because of an inability to pay a traffic fine,
limiting the ability to find work to pay those fines.16 “The result,” one
academic report concludes, “is a system effectively designed to turn
individuals with criminal convictions into permanent debtors.” 17
The Constitution forbids incarceration of those who are simply unable to
pay, as opposed to those who can pay but willfully
refuse. In practice, though, that rule provides little
protection. Courts routinely fail to conduct the
required assessment of ability to pay. But even
resolving that failure may make little difference
if courts conclude that “all nonpayment is willful
because felons ‘can always go out and get a day
job,’” as one corrections officer put it.18 Because
failure to pay these court-ordered debts may be,
and often is, punished with incarceration, criminal
justice debt provides another tool to threaten
the inadequately employed with imprisonment.
flickr photo by insunlight https://flickr.com/photos/insunlight/1037277952
shared under a Creative Commons (BY-NC-ND) license

6 | GET TO WORK OR GO TO JAIL

For debtors who cannot afford to pay directly, the
court may order them to pay indirectly by providing

free labor through a mandatory “community service” program.19
Failure to work—for free—can mean going to jail for having failed to
“pay.” Thus, in a modern form of debt peonage, these workers’ debts
become the basis for forcing them to choose between work or jail, and
in exchange for their work, community-service workers receive not a
dime in cash but only a reduction in their court-imposed debt. Even
debt reduction sometimes is credited at less than the minimum wage
per hour of work. 20 Those not incarcerated may face the loss of a driver’s
license, further undermining their ability to find and keep work. 21
While very little data is available on court-ordered community
service arising from criminal justice debt, we find that at least
50,000, and probably over 100,000, residents of Los Angeles
alone perform court-ordered community service each year. 22
Some debtors perform many hundreds of hours of unpaid labor,
the equivalent of several months of full-time work. They work
at a broad range of state and local government agencies and
nonprofits, such as the Los Angeles County Department of Parks,
County Probation Department, the California Department of
Transportation, churches, social service providers, and others. 23

At least 50,000,
and probably over
100,000, residents
of Los Angeles
alone perform
court-ordered
community service
each year. Some
debtors perform
many hundreds of
hours of unpaid
labor, the equivalent
of several months
of full-time work.

In conclusion, any run-in with the criminal justice system, even as
minor as a traffic infraction, can result in a cycle of debt and the
threat of incarceration. Criminal justice debt is on the rise. In many
instances, courts order insolvent debtors to perform free labor in
the form of community service. We explore in Section II the effect
this threat, and its attendant (un)free labor, has on the workplace.

C. Child Support Enforcement
As when one owes criminal justice debt, owing child support can
trigger a pay-or-jail threat that becomes a work-or-jail threat. Child
support orders tell a parent who does not have custody of a child to
financially assist the custodial parent in supporting the child. When the
custodial parent and child are poor enough to receive public assistance,
child support is not paid directly to them; instead, the government
typically seizes all or most of the payments to reimburse itself for the
family’s benefits. 24 This gives the government a financial interest in
extracting payments, just as it does with criminal justice debt. California
alone has well over a million non-custodial parents in its system, 25
and nearly one-quarter of its cases are in Los Angeles County. 26

GET TO WORK OR GO TO JAIL | 7

Contrary to the
stereotype of the
“deadbat,” these
parents are just
“deadbroke”...
over 80% of those
in arrears had
annual incomes
below $20,000,
and over 60% had
annual incomes
below $10,000.

As with criminal justice debt, nonpayment of child support obligations
can lead to incarceration, either by holding the debtor in contempt
of court or through direct criminal prosecution. This is a serious
risk because many noncustodial parents face child support debts
that far outstrip their ability to pay. 27 Contrary to the stereotype
of the “deadbeat,” these parents are just “deadbroke.”28 One
study of California child support arrears found that over 80% of
those in arrears had annual incomes below $20,000, and over
60% had annual incomes below $10,000. 29 Low-income obligors
fall further and further behind because child support orders are
set unrealistically high, often demanding payments over 50%
of incomes that were already below the poverty line.30 And as
with criminal justice debt, no bankruptcy relief is available.
Pay-or-jail leads to work-or-jail because the law treats child
support obligations as a duty to earn enough to pay. The California
Supreme Court has concluded that child support debtors must
“seek and accept available employment” or face jail time.31 In
that 1998 decision, the trial judge jailed a father purely because
he was unemployed. There was no specific job that he had quit
or turned down, but the court decided that he “could get a job
flipping hamburgers at McDonald’s [but] chose [] not to.”32
Among parents who face any child support enforcement action,
one in four is incarcerated.33 Even more strikingly, within the
much broader population of all fathers in U.S. cities, we estimate
that at least 5% face incarceration for child support at some
point, including a remarkable 15% of all African American
fathers.34 If California follows the national pattern, a back-of-theenvelope estimate predicts that upwards of 100,000 Californians
may face child support incarceration at some point.35
Figures 1 and 2 illustrate that fathers incarcerated for child support
are disproportionately Black and poor. Figure 1, “Race and Child
Support Enforcement,” shows that while African American fathers
are 41% of all non-custodial fathers, they comprise 78% of all fathers
incarcerated as child support enforcement. Similarly, Figure 2,
“Poverty and Child Support Enforcement,” shows that impoverished
non-custodial fathers comprise 29% of all non-custodial fathers, but a
stunning 85% of those incarcerated for failure to pay child support.

8 | GET TO WORK OR GO TO JAIL

FATHERS

Black

Figure 1: Race and Child Support Enforcement
3%

5%
10%

24%

7%

SUPPORT ENFORCEMENT

Hispanic

White

Other

Figure 2: Poverty and Child Support Enforcement

5%
10%
46%

32%
78%

85%

24%

41%

29%

NONCUSTODIAL
FATHERS

Black

INCARCERATED AS CHILD
SUPPORT ENFORCEMENT

Hispanic

White

Other

NONCUSTODIAL
FATHERS

In poverty

INCARCERATED AS CHILD
SUPPORT ENFORCEMENT

Near poverty

Well above poverty

Note: In/near/well above = below 100%/100-200%/above 200% of
federal poverty line

5%
Like those incarcerated for failure to 10%
comply with work and debtrelated probation and parole requirements, these individuals are
workers. The
46%overwhelming majority, 95%, reported employment in
the prior year.36 Inadequate employment—with wages too low and/
or hours too few—appear to prevent these fathers from being able to
consistently pay. In other words, they are “deadbroke,” not “deadbeat.”
These parents are most vulnerable to incarceration because most other
enforcement tools—like garnishing wages or intercepting tax returns—
85%
24% those who have money
only work against
but refuse to turn it over.

As with work and debt-related conditions of probation and parole,
little research has thus far explored the extent of incarceration
37
for nonpayment
29% of childsupport. We have made novel use
of an existing survey dataset to produce these new national
estimates. Our findings indicate the threat of incarceration is not
only real,
but disproportionately
impactsASfathers
NONCUSTODIAL
INCARCERATED
CHILD of color.
FATHERS

In poverty

SUPPORT ENFORCEMENT

Near poverty

Well above poverty
GET TO WORK OR GO TO JAIL | 9

Note: In/near/well above = below 100%/100-200%/above 200% of
federal poverty line

II. Dangers to Workers’ Rights
Clearly, even a very bad job is better than prison. The work-orjail threat makes bad or exploitative work more appealing by
that comparison. Furthermore, that threat likely makes bad jobs
worse by amplifying the vulnerability of workers, empowering
their employers, placing a legal seal of approval on exploitative
practices, and profoundly complicating worker solidarity. This
section elaborates on some of the specific mechanisms by which
this can happen, often by analogy to similar dynamics involving
immigrant workers, welfare-to-work programs, and prison labor.

A. Depressing labor standards. Workers face government
pressure to lower their standards and to accept jobs with
onerous or dangerous working conditions.

Courts have
punished workers
for failing to change
occupations, quit
college, accept a 60hour workweek, or
relocate across state
lines, treating each
of these examples as
workers “choosing”
not to earn enough
income to pay
child support.

In theory, someone ordered to pay cannot be incarcerated if he
simply has no money, and someone ordered to work cannot be
incarcerated if he simply cannot find a job. However, someone
can be incarcerated if the court decides that he is not trying hard
enough to find or keep a job, or is not working hard enough on
the job. For instance, courts have punished workers for failing to
change occupations,38 quit college,39 accept a 60-hour workweek,40
or relocate across state lines,41 treating each of these examples as
workers “choosing” not to earn enough income to pay child support.
This particular pressure to find employment can quickly and dramatically
depress workplace standards and can cause workers to enter, or remain
in, jobs with onerous or dangerous working conditions. Consider,
for instance, someone who can find only jobs that pay illegally low
wages. This reality is all-too-frequent in Los Angeles, where nearly
one in three low-wage workers makes less than minimum wage.42 If a
worker rejects a job that violates her basic rights, is she “voluntarily”
or “involuntarily” unemployed? In the unemployment insurance
system, workers have the right to refuse to undercut prevailing wages,
replace strikers, or work for unlicensed employers.43 This protection
lets workers remain eligible for benefits because they are considered
“involuntarily unemployed.” In the work-or-jail context, where the
stakes are losing physical freedom rather than losing income, similar
protections are not in place. The question, then, is what degraded
labor standards can workers be required to accept, and can the
government prioritize payment of debt over workplace rights?

10 | GET TO WORK OR GO TO JAIL

Further, the power of probation and parole, child support enforcement,
and criminal justice debt collection is often used to order un(der)
employed individuals to attend and participate in closely-monitored
employment services. In principle, such programs can expand
workers’ job opportunities by providing training, helping overcome
barriers to employment, and offering other work supports.44 The
federal child support enforcement agency touts such programs
as “increasing the ability of unemployed noncustodial parents to
get and keep a job” and thereby offering productive alternatives
to punitive enforcement techniques.45 The same federal guidance,
however, specifically endorses the appropriateness of incarceration for
nonparticipation, in contrast to incarceration for mere nonpayment.46
There is strong reason to suspect that these “services” often function
primarily to lower expectations and channel workers into bad jobs.47
That concern is amplified when an employment program cannot
attract workers’ voluntary participation with the prospect of helping
them find better jobs, but instead relies on threatening them with
incarceration for nonparticipation. For instance, pending federal child
support regulations advocate a “work first” approach that resembles
the harshest kind of welfare-to-work program. They specifically reject
“services to promote access to better jobs and careers” and instead
endorse “rapid labor force attachment,”48 affirming programs that
primarily intensify monitoring to push un(der)employed participants to
search harder and less selectively and to accept any job on any terms.
Unsurprisingly, one Texas program run on this model simultaneously
increased the number of people working but decreased the earnings
of those who worked.49 This monitored “work
first” tack builds on longstanding techniques
like California’s practice of issuing “seek work
orders,” which require unemployed child support
obligors to submit lists of at least five job
applications every two weeks or face contempt
proceedings that can lead to incarceration.50
Reliance on these structured employment
programs is growing, with support across the
political spectrum. The Obama administration’s
Office of Child Support Enforcement has been
promoting child support work programs
in 30 states, 15 of which had programs with
over 400 participants, including several

flickr photo by Ghenady https://flickr.com/photos/ghenady_azarov/5048561044
shared under a Creative Commons (BY) license

GET TO WORK OR GO TO JAIL | 11

in California.51 Similar programs, with similar consequences for
nonparticipation,52 may be imposed as a condition of probation
or parole, and some have advocated a massive expansion in
this direction.53 Growth in this direction in the criminal justice
debt context would also be unsurprising,54 given the history of
characterizing unpaid community service as a form of “work
experience” in the context of “work first” welfare reform.55

B. Suppressing Worker Voice. Workers who speak up for
themselves or organize collectively face employers who
can retaliate not merely by firing them but by enlisting law
enforcement to send workers to jail.
[Judge to the employer:] Okay, I’ll make a deal
with you, you take him back and I’ll add another
weapon to your arsenal. If he doesn’t come to work
when he is supposed to, doesn’t come to work
on time . . . I’ll put him in jail, on your say so.
[Judge to the defendant:] Your employer is now on
the team of people who are reporting to me. When he
calls up and tells me that you are late, or that you’re not
there, I’m going to send the cops out to arrest you.56

In every instance of
workplace friction

This exchange from a court supervision program illustrates how
a work-or-jail threat issued to a worker can empower employers.
Any system of work requirements invites an accompanying system
of surveillance. For unemployed workers, mandatory participation
in structured job search or work programs includes monitoring for
compliance with those programs. For employed workers, however,
the criminal justice system is likely to rely on employers, deferring
to their judgments about appropriate work commitment and
discipline, essentially deputizing them as probation officers.
In every instance of workplace friction or conflict, then, the
balance of power is fundamentally tilted toward employers.

balance of power is
fundamentally tilted
toward employers.

Employers have tremendous incentives to misuse this power to
their advantage. The recent history of employer-based immigration
enforcement communicates this fact vividly.57 There, the government
empowers employers by relying on them to screen for work
authorization status through the I-9 process. Employers can do this

12 | GET TO WORK OR GO TO JAIL

selectively and wield the threat to trigger immigration enforcement
in a dispute.58 This dynamic likewise occurs in guestworker programs
where workers face deportation if they lose their job. In both cases,
the employer’s power to fire is multiplied by the government’s power
to detain and deport. Scholars and immigrant worker advocates
have documented at length how employers use this power to disrupt
organizing, degrade working conditions, and depress wages.59
In the example above, imagine that the employer wants to get rid
of the worker for protesting working conditions or organizing to
improve them. The employer needs only to tell the judge that the
worker was late, even if it’s false or merely a pretext for retaliation.
In theory, the worker might protest his innocence or identify the
employer’s manipulation, but can the worker be confident that
truth will win out? After all, the judge has already promised to
rely on the employer’s narrative. For workers who already have
been marked as untrustworthy by the criminal justice system and
who can face racist stereotypes about work discipline, there is
every reason to expect that authorities will give employers the
benefit of the doubt and assume that workers are in the wrong.

C. Evading Legal Protections. Workers laboring under
the threat of incarceration may be stripped of standard
employment protections like the minimum wage, workers
compensation, and the right to be free from discriminatory
practices—especially in unpaid, court-ordered community
service.
At a minimum, labor and employment laws theoretically protect workers
from being forced to accept jobs that the law independently deems
illegal, and to sanction employers who use their power to accomplish
independently illegal purposes. Yet these protections are routinely
circumvented. Consider the participation agreement that must be
signed by some court-ordered community service workers in LA:
I understand that I am not an employee of the [agency]
for which I will be performing unpaid community
service. I further understand and agree that if I suffer any
injury or illness arising out of, and/or in the course of,
performing the community service, I will not be entitled
to recover any workers’ compensation benefits.60

GET TO WORK OR GO TO JAIL | 13

Not only are these workers forced to work or go to jail, they are not
classified as employees and are compelled to work for free. Ordinarily,
this would be a flagrant violation of minimum wage laws, but they are
sidestepped by this arrangement’s claim that these workers have no legal
rights as workers. This tactic also thwarts protections against workplace
discrimination, retaliation for worker organizing, and workplace injury.
Reasonably, volunteers who donate their services generally are
not protected by labor laws, but workers forced to do similar work
or go to jail are very differently situated. Indeed, it is misleading
to characterize the work as unpaid when it is done in exchange
for cancelling a debt. Rather, it more closely resembles wage
garnishment at the unconscionable rate of 100%.61 Courts have
used similarly flexible definitions of compensation to find an
employment relationship, and therefore employment protections,
where nominally unpaid workfare workers received the financial
benefit of continued public assistance in exchange for their work.62
Stripping workers of rights by declaring them not to be “employees”
is a familiar pattern,63 one that has met with mixed success legally.
Unpaid “community service” or “work experience” programs run
by welfare-to-work agencies have long taken such a position but
have been rebuffed in court.64 In contrast, courts almost uniformly
exempt prison labor programs from employment protections,
even when that work is explicitly paid an hourly wage.65 The
issue has received negligible attention in the context of courtordered community service, but one federal judge recently found
a program in New York to be exempt from employment law.66
Consider another example. In the United States, the most basic
worker’s right is the right to quit, a right enshrined in the Constitution
by the Thirteenth Amendment’s prohibition of involuntary servitude.
Over the years, however, courts have invented exceptions for work
ranging from military service to sailing a private commercial vessel.67
One federal appeals court has likewise exempted forced labor in the
context of the child support system, reasoning that it fulfills a duty
“of vital importance to the community,” not least because it helps the
government avoid providing public assistance to low-income children.68
It is easy to imagine how this precedent might be extended to more
conventional labor and employment law claims and to other contexts,
especially those more directly linked to the criminal justice system.

14 | GET TO WORK OR GO TO JAIL

D. Disciplining or Displacing Other Workers. Employers
can replace existing workers with workers threatened with
incarceration. This forces workers to accede to degraded
working conditions or face losing their jobs.
Allowing employers to degrade the working conditions of some workers
inherently threatens all workers. The analogy to immigrant workers
is again instructive: the power of employers to leverage workers’
unauthorized immigration status often translates into lower wages,
slack safety standards, and stifled organizing for all workers.69 Employers
can threaten to replace existing workers with more vulnerable ones,
unsettling solidarity and organizing in mixed-status workplaces.
This threat of replacement is especially pronounced in court-ordered
community service, where employers have access to a captive
workforce that is excluded from employment protections. Clearly,
making one person work for free means that an employer need
not hire someone else to perform that labor. Unpaid welfare-towork programs similarly created a substitute workforce that state
and local governments used to slash unionized public sector jobs.70
The growing presence of a sprawling, uncompensated “community
service” labor force allows employers, typically nonprofits or state
and local governments, to either eliminate paid workers or avoid
hiring them in the first place. It also provides leverage with which to
push unions into concessions. And when one employer has access
to free or cheap labor, it puts downward pressure on its competitors’
workers, a longstanding concern in prison labor programs.71
Welfare-to-work programs attempt to address these problems with
rules against using unpaid labor to displace regular employees or
perform unionized work.72 Likewise, guestworkers are permitted
only in the context of labor shortages and are required to receive
the prevailing wage, and strict restrictions apply to using prison
labor to underbid firms with conventional workforces.73 No such
protections exist for workers potentially replaced or undermined
by court-ordered community service or by other forms of work
compelled by the threats of incarceration discussed in this report.

The growing
presence of
a sprawling,
uncompensated
“community
service” labor force
allows employers,
or state and local
governments, to
either eliminate paid
workers or avoid
hiring them in the

GET TO WORK OR GO TO JAIL | 15

Conclusion: Directions for Future
Research
In this report, we have presented three mechanisms by which the
government compels people to work by threatening them with jail.
Those mechanisms include probation and parole requirements,
criminal justice debt, and child support. We find that the threat of
jail is real, these individuals are workers, and people of color and
poor people are dramatically disproportionately impacted.
This report is meant to raise a series of novel, urgent questions
that future research must address. As criminal justice reformers
seek alternatives to incarceration, it is essential to scrutinize
those alternatives for new risks of exploitation or abuse. Those
risks are high when the alternative to incarceration is mandatory
work, especially in a low-wage labor market already plagued by
unemployment, wage theft, job insecurity, and racial discrimination.
Similarly, advocates of workers’ rights should take interest in mass
incarceration and the threat of imprisonment. We identify four
possible effects on the workplace: (1) depressing labor standards, (2)
suppressing workers’ voices, (3) evading legal protections, and (4)
disciplining or displacing other workers. Available data, though limited,
and analogous phenomena involving immigrant labor, prison labor,
and welfare-to-work programs, suggest cause for serious concern.
Future empirical research should explore whether and to what
degree these four effects occur. Legal and policy research should
begin to consider what reforms might blunt any such effects.
Many of this report’s topics may involve unintended consequences
of well-meaning efforts to reduce child poverty, roll back mass
incarceration, and overcome the severe barriers to employment for
formerly incarcerated or convicted people. But when forced labor
has come to seem like an appealing solution, something has gone
dramatically awry. We might instead try to imagine a different world
that could make freedom, solidarity, and prosperity available to all.

16 | GET TO WORK OR GO TO JAIL

Acknowledgements
This report was supported in part by generous funding from the
UCLA Institute for Research on Labor and Employment and from
the John Randolph Haynes and Dora Haynes Foundation.
This report benefited from generous feedback and contributions
from the following: Alliance of Californians for Community
Empowerment (ACCE), American Civil Liberties Union (ACLU) of
Southern California, All of Us or None, LA Black Worker Center (BWC),
CLEAN Carwash Campaign, Fight for 15, Koretown Immigrant Workers
Association (KIWA), Mental Health Advocacy Service, Restaurant
Opportunity Center-LA (ROC-LA), SEIU-United Services Workers
West (USWW), Warehouse Workers United (WWU), and others.

Notes
Apuzzo, Matt, Eligon, John. March 4, 2015. “Ferguson Police Tainted
by Bias, Justice Dept. Says.” The New York Times. http://www.nytimes.
com/2015/03/05/us/us-calls-on-ferguson-to-overhaul-criminal-justicesystem.html?_r=0; Rosenberg, Tina. March 27, 2015. “Out of Debtors’
Prison, With Law as the Key.” The New York Times. http://opinionator.
blogs.nytimes.com/2015/03/27/shutting-modern-debtors-prisons/
1

Herbherman, Erinn J. & Bonczar, Thomas P. 2015. “Probation and
Parole in the United States, 2013.” Washington, DC: US Department of
Justice, Office of Justice Programs, Bureau of Justice Statistics.
2

Examples of local programs include San Francisco’s “Back on Track” or
Los Angeles’ “Back on Track LA” diversion programs. See Rivers, Jacquelyn
L. & Anderson, Lenore. September 2009. “Back on Track: A ProblemSolving Re-Rentry Court, BJA Fact Sheet,” Bureau of Justice Affairs Press
Release. https://www.bja.gov/Publications/BackonTrackFS.pdf. March
11, 2015. “Attorney General Kamala D. Harris, LA County Officials Launch
Los Angeles Recidivism Reduction Initiative,” State Department of Justice
Office of the Attorney General Press Release. https://oag.ca.gov/news/
press-releases/attorney-general-kamala-d-harris-la-county-officialslaunch-los-angeles. Federal examples include the Conviction Alternatives
Program in the Northern Federal District, http://www.cand.uscourts.gov/
3

GET TO WORK OR GO TO JAIL | 17

CAP, and Conviction and Sentence Alternatives in the Central District, https://
www.cacd.uscourts.gov/judges-requirements/court-programs/casa.
Doherty, Fiona. Forthcoming 2016. “Obey All Laws and Be Good: Probation
and the Meaning of Recidivism,” Georgetown Law Journal, 104 (2), p. 291.
4

United States v. Woodson, 463 F. App’x 266 (5th Cir. 2012),
cert. denied, 133 S. Ct. 43 (U.S. Jun. 25, 2012).
5

6

Batton v. Com. ex rel. Noble, 369 S.W.3d 722 (Ky. Ct. App. 2012).

Authors’ calculations from the 2002 Survey of Inmates in Local Jails and
the 2004 Survey of Inmates in State and Federal Correctional Facilities.
7

Authors’ calculations from the 2002 Survey of Inmates in Local Jails and
the 2004 Survey of Inmates in State and Federal Correctional Facilities.
8

9

Ibid.

10

Ibid.

11

Ibid.

Soss, Joe, et al. 2011. Disciplining the Poor: Neoliberal Paternalism
and the Persistent Power of Race. University of Chicago Press.
12

Bannon, Alicia, et al. 2010. “Criminal Justice Debt: A Barrier to
Reentry.” Brennan Center for Justice at New York University School
of Law. p. 4. http://www.brennancenter.org/sites/default/files/
legacy/Fees%20and%20Fines%20FINAL.pdf; Colgan,Beth A. 2014.
“Paying for Gideon.” Iowa Law Review, 99, p. 1929, 2014.
13

Taylor, Mac. 2016. “Improving California’s Criminal Fine and
Fee System.” Legislative Analyst’s Office, p. 8. http://lao.ca.gov/
reports/2016/3322/criminal-fine-and-fee-system-010516.pdf.
14

Ibid. See also, e.g., Cal. Penal Code § 1214.1 (imposing
a $300 penalty for failing to pay a fine).
15

“Not Just a Ferguson Problem: How Traffic Courts Drive
Inequality in California.” April 8, 2015. Justice Not Jails. http://
justicenotjails.org/traffic-courts-drive-inequality/.
16

17

Bannon, supra note 13.

18

Harris, Alexes, et al. 2010. “Drawing Blood from Stones: Legal

18 | GET TO WORK OR GO TO JAIL

Debt and Social Inequality in the Contemporary United States.”
American Journal of Sociology, 115 (6), pp. 1753-1799, 1788 n. 28.
19

Cal. Penal Code § 1205.3.

Interview with Theresa Zhen, Skadden Fellow at A New
Way of Life Reentry Project, February 2, 2016 (detailing her
experiences representing clients in Los Angeles County).
20

“Not Just a Ferguson Problem: How Traffic Courts Drive
Inequality in California.” 2015. Justice Not Jails. http://
justicenotjails.org/traffic-courts-drive-inequality/
21

LA Superior Court records indicate that from July 2013 through June
2014, approximately 50,000 individuals performed court-ordered
community service through six intermediary referral agencies (Alternative
Sentencing Program, the El Monte Police Department, Volunteer Center
South Bay, Special Services for Groups, and Inland Valley Resource
Center). This figure, however, excludes most of the referral agencies
serving the LA Superior Court, including the largest, Volunteer Center
of Los Angeles, and so the true figure is likely at least twice as large.
22

These and many more are included in lists of placement sites
identified by the six referral agencies referenced above.
23

Hatcher, Daniel L. 2007. “Child Support Harming Children:
Subordinating the Best Interests of Children to the Fiscal Interests
of the State.” Wake Forest Law Review, 42 (4), pp. 1029-1086.
24

“FY 2012 Annual Report to Congress, State Performance Alabama to
Georgia.” March 11, 2015. Office of Child Support Enforcement, Office
of the Administration for Children & Families, p. 27. http://www.acf.
hhs.gov/programs/css/resource/fy2012-annual-report-to-congress
25

“Preliminary Performance Data Federal Fiscal Year 2015.”
November 2015. California Department of Child Support Services,
Tbl. 1.2. http://www.childsup.ca.gov/portals/0/resources/docs/
reports/2015/ffy2015preliminaryperformancedata.pdf
26

Brito, Tonya. 2012. “Fathers Behind Bars: Rethinking Child
Support Policy Toward Low-Income Fathers and Their Families.”
Journal of Gender, Race & Justice, 15 (3), pp. 617-673.
27

28

Maldonado, Solangel. 2005. “Deadbeat or Deadbroke: Redefining

GET TO WORK OR GO TO JAIL | 19

Child Support for Poor Fathers.” UC Davis Law Review, 39 (991).
Sorensen, Elaine, et al. 2009. “Examining Child Support Arrears
In California: The Collectibility Study.” Urban Institute.http://
www.urban.org/research/publication/examining-child-supportarrears-california-collectibility-study/view/full_report
29

30

Ibid. at 9.

31

Moss v. Superior Court, 950 P.2d 59, 76 (Cal. 1998).

32

Ibid. at 63.

Authors’ analysis of data from the “Fragile Families and Child Wellbeing
Study” (FFCWS), which follows the parents of a representative samples of
children born in 20 U.S. cities in 1998-2000 and weighted to be nationally
representative of families with biological children in cities with populations
over 200,000. Brooks-Gunn, Jeanne et al. 2010. “Fragile Families and Child
Wellbeing Study, ICPSR31622-v1.” Inter-university Consortium for Political
and Social Research. http://doi.org/10.3886/ICPSR31622.v1. This result
draws on responses by both fathers and mothers to questions about child
support and its enforcement, as well as to questions about the charges
that were the basis for any criminal conviction or incarceration.
33

Ibid. This figure is based on FFCWS reports collected over the first nine years
of the focal child’s life. Accordingly, it does not capture paternal incarceration
when the child was older, and it probably underrepresents incarceration
based on child support owed for any children other than the focal child
with a different mother. For these and other methodological reasons, this
estimate is unavoidably imprecise but nonetheless provides a reasonable
estimate of the scale of incarceration for child support nonpayment.
34

Ibid. Based on national results for fathers of children born in cities of over
200,000 residents. 7% of noncustodial fathers were incarcerated within 9 years
after the child’s birth. Applied to California’s base of 1.1 million noncustodial
parents, and with allowance for the potential undercounts noted above.
35

36

Ibid.

37

Brito supra note 27.

38

United States v. Fuller, 751 F.3d 1150 (10th Cir. 2014).

39

Child Support Enforcement Agency v. Doe, 109 Haw. 240 (Haw. 2005).

20 | GET TO WORK OR GO TO JAIL

40

McDaniel v. McDaniel, 878 So. 2d 686 (La. Ct. App. 2004).

41

Ibid.

Milkman, Ruth, et al. 2010. “Wage Theft and Workplace Violations in Los
Angeles: The Failure of Employment and Labor Law for Low-Wage Workers.”
UCLA Institute for Research on Labor and Employment. http://www.irle.
edu/publications/documents/LAwagetheft-Milkman-Narro-110.pdf.
42

43

Cal. Unemp. Ins. Code §§ 1258.5, 1259.

Mincy, Ronald B., et al. 2011. “Income Support Policies for Low-Income
Men and Noncustodial Fathers: Tax and Transfer Programs.”The Annals of
the American Academy of Political and Social Science, 635 (1), pp. 240-261.
44

Office of Child Support Enforcement. November 17, 2014.
“Flexibility, Efficiency, and Modernization in Child Support
Enforcement Programs.” 79 Fed. Reg. pp. 68548, 68558.
45

46

Ibid.

Lafer, Gordon. 2002. “What is ‘Skill’?: Training for Discipline in the LowWage Labour Market”, in The Skills that Matter. (Chris Warhurst, et al., eds.
2004); Cancian, Maria, et al. 2002. “Before and After TANF: The Economic
Well Being of Women Leaving Welfare.” Social Service Review, 76 (4), 603-641.
47

48

Office of Child Support Enforcement supra note 45.

Schroeder, Daniel & Doughty, Nicholas. 2009. “Texas Non-Custodial Parent
Choices: Program Impact Analysis.” Ray Marshall Center for the Study of Human
Resources, LBJ School of Public Affairs, The University of Texas at Austin, p. 59.
49

50

Cal. Fam. Code § 4505.

Office of Child Support Enforcement. 2014. “Work-Oriented Programs
with Active Child Support Agency Involvement that Serve Noncustodial
Parents.” https://www.acf.hhs.gov/sites/default/files/programs/css/work_
oriented_programs_for_non_custodial_parents_2014.pdf. See also Office
of Child Support Enforcement. 2012. “Alternatives to Incarceration.” http://
www.acf.hhs.gov/programs/css/resource/alternatives-to-incarceration.
51

52

United States v. Holmes, 489 F. App’x 977 (8th Cir. 2012).

Mead, Lawrence M. 2011. “Expanding Work Programs for Poor
Men.” American Enterprise Institute. https://www.aei.org/
53

GET TO WORK OR GO TO JAIL | 21

publication/expanding-work-programs-for-poor-men/
Weisburd, David, et al. 2008. “The Miracle of the Cells: An Experimental
Study of Interventions to Increase Payment of Court-Ordered Financial
Obligations.” Criminology & Public Policy, 7 (1), pp. 9-16. https://goo.gl/1pAehT
54

Turner, Jason A. & Main, Thomas. “Work Experience Under Welfare Reform”
in The New World of Welfare (p. 291) (Blank and Haskins, eds. 2001).
55

McLeod, Allegra M. 2012. “Decarceration Courts: Possibilities
and Perils of a Shifting Criminal Law,” Georgetown Law Journal
100, pp. 1587, 1594. http://scholarship.law.georgetown.edu/
cgi/viewcontent.cgi?article=2285&context=facpub
56

Lee, Stephen. 2011. “Monitoring Immigration
Enforcement.” Arizona Law Review, 53, 1089-1136.
57

Smith, Rebecca, et al. 2009. “Iced Out: How Immigration Reform
Interferes with Workers’ Rights.” National Employment Law Project,
AFL-CIO, and American Rights at Work Education Fund. http://
www.nelp.org/content/uploads/2015/03/ICED_OUT.pdf
58

Baur, Mary, Stewart, Meredith. 2013. “Close to Slavery:
Guestworker Programs in the United States.” Southern Poverty
Law Center. https://www.splcenter.org/20130218/close-slaveryguestworker-programs-united-states#deportation-card
59

Court Referred Volunteer Center. Revised March 1, 2015. “Community
Service Intake & Agreement Form.” Assistance League Los Angeles.
60

“Fact Sheet #30: The Federal Wage Garnishment Law, Consumer
Credit Protection Act’s Title 3 (CCPA).” Revised July 2009.
U.S. Department of Labor, Wage and Hour Division. https://
www.dol.gov/whd/regs/compliance/whdfs30.pdf
61

62

United States v. City of New York, 359 F.3d 83 (2d Cir. 2003).

Zatz, Noah D. “Working Beyond the Reach or Grasp of Employment
Law” in The Gloves-Off Economy: Problems and Possibilities at
the Bottom of America’s Labor Market (Bernhardt, Annette et al.,
eds. 2008). Labor and Employment Relations Association.
63

64

E.g., United States v. City of New York, 359 F.3d 83 (2d Cir. 2003).

22 | GET TO WORK OR GO TO JAIL

Zatz, Noah D. 2008. “Working at the Boundaries of Markets:
Prison Labor and the Economic Dimension of Employment
Relationships.” Vanderbilt Law Review, 61, pp. 857-958.
65

66

Doyle v. City of New York, 91 F.Supp.3d 480 (S.D.N.Y. 2015).

Robertson v. Baldwin, 165 U.S. 275 (1897); Butler v. Perry, 240
U.S. 328 (1916); Arver v. United States, 245 U.S. 366 (1918).
67

United States v. Ballek, 170 F.3d 871 (9th Cir. 1998). Moss v. Superior
Court, 950 P.2d 59 (Cal. 1998). See generally Zatz, Noah D. Forthcoming
2016. “A New Peonage?: Pay, Work, or Go To Jail in Contemporary
Child Support Enforcement and Beyond,” Seattle Law Review, 39.
68

Motomura, Hiroshi. 2014. Immigration Outside
the Law. Oxford University Press.
69

‘Greenhouse, Steven. April 13, 1998. “Many Participants in Workfare
Take the Place of City Workers.” New York Times. http://www.nytimes.
com/1998/04/13/nyregion/many-participants-in-workfare-take-theplace-of-city-workers.html?pagewanted=all. See also, Seitz-Wald, Alex.
2011. “Union Workers Replaced With Prison Labor Under Scott Walker’s
Collective Bargaining Law.” Think Progress. http://thinkprogress.
org/politics/2011/07/06/261319/scott-walker-prison-labor/
70

Schwartzapfel, Beth. 2012. “Modern-Day Slavery in America’s
Prison Workforce.” American Prospect. http://prospect.org/article/
great-american-chain-gang: Wood, Graeme. 2015. “From Our Prison
to Your Dinner Table.” Pacific Standard. http://www.psmag.com/
business-economics/from-our-prison-to-your-dinner-table
71

72

E.g., Cal. Welf. & Inst. Code § 11324.6(g); 42 U.S.C. § 607(f).

73

18 U.S.C. § 1761(c)(2).

GET TO WORK OR GO TO JAIL | 23

 

 

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