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ABSTRACTWork requirements backed by threats of incarceration offer a fertile but neglected site for sociolegal inquiry. These “carceral work mandates” confound familiar accounts of both the neoliberal state’s production of precarious work through deregulation and the penal state’s production of racialized exclusion from labor markets. In two illustrative contexts—child support enforcement and criminal legal debt—demands for work emerge as efforts to increase and then seize earnings from indigent debtors; an ability to pay is defined to include an ability to work. In a third, demands for work are imposed directly through probation, parole, and other community supervision. In each context, the carceral state regulates work outside of prison. It defines appropriate labor conditions through concepts of voluntary unemployment, and it enables employers to discipline or retaliate against workers by triggering state violence. Additionally, mandated work may be removed from employment law protections when the carceral context dominates its sociolegal meaning. Finally, the resulting vulnerable workforces can be used to displace or discipline other workers not personally subject to carceral work mandates. Analogies to welfare work requirements, workplace immigration enforcement, and prison labor illustrate these points. Implications are considered for theorizing contemporary racial political economy.

What is work? Who is a worker? Labor & employment law scholars have increasingly interrogated work and employment asconstructed categories, categories whose legal definition incorporates a host of culturally and historically specific assumptions. These constructions are crucial not only for workers’ rights on the job but also for citizenship rights in the welfare state. To be a worker is to beprotected by labor law, by wage & hour law, by employment discrimination law, and so on, but also to be entitled to disability, unemployment, and retirement benefits provided by the state butconditioned on employment. To put it broadly, to gain the title worker is also to belong, to become entitled to what T.H. Marshall called social citizenship – “the right to a modicum of economic welfare and security . . . the right to share to the full in the social heritage and to live the life of a civilised being according to the standards prevailing in society.”1 This is where labor & employment law meets social welfare policy.

The mark of a criminal record is clearly harmful for employment. The reasons for employer aversion, however, are not well established even though legal, policy, and scholarly responses rely on particular explanations. We propose that explanations for aversion often fit under a repetition risk framework in which employers use records as neutral sources of information about prior illegal activity and make decisions to minimize risk of similar future conduct. A second explanation is stigma, in which the records themselves, independent of conduct, trigger stereotypes, status loss, and discrimination. Using an experimental employer survey, we find that employers evaluate applicants with records more negatively than they do applicants with similar behavior signaled through non-criminal-justice sources (e.g., social media); this effect remains after accounting for predictions about future conduct. It is also most apparent among higher status jobs rather than among manual labor jobs, and it persists after adjusting for firm-level and legal constraints. We conclude that aversion reflects not only repetition risk but also the stigma of criminal justice contact. Insofar as criminal record screening is not exclusively a form of rational risk management, this finding may lead to altered assessments of the benefits of screening relative to the costs of perpetuating inequality produced by the criminal justice system.