What does mass incarceration have to do with labor law?  I suggest some new and disturbing answers in a report released earlier today in collaboration with colleagues at the UCLA Labor Center and A New Way of Life Reentry Project.  We highlight the labor market implications when government demands that workers find and accept certain kinds of jobs—or be incarcerated.

Labor law is about power at work.  Without it, employers have too much, and workers have too little.  Labor law aims to even the score “by restoring equality of bargaining power between employers and employees,” as the Wagner Act’s (NLRA) famous preamble declares.

But what causes unequal power at work?  The conventional analysis is that employers exercise excess private economic power due to the nature of markets fused to wealth inequality.  Through the countervailing exercise of political power, the state can act as a counterweight, including by creating structures for workers collectively to exercise economic power.  The democratic state mitigates the unequal market.

More critical views are less sanguine about the state and more skeptical of the economics/politics distinction.  Consider immigrant workers.  Employers gain power when they can trigger a worker’s detention and deportation by the state.  That occurs when authorized presence depends on keeping a job, or when employers are deputized as immigration screeners.  Employers amass leverage over workers when the boss controls not just their ability to put bread on the table but their safety from legalized state violence.

What about other government uses of physical force, in particular arrest and incarceration through the criminal justice system?  Such questions concerning prison labor are familiar, but not so with the vastly larger members of “free labor” who live outside the prison but toil in its shadow.

In several contexts, the state issues the threat “get to work or go to jail.”  Here, “get to work” means not just “get a job” but a broader injunction to work harder, longer, and faster, to expect less and not complain, let alone organize.  Through the conditions of probation and parole, the enforcement of child-support obligations, and the collection of criminal justice debts, the state demands work under threat of incarceration.  When that threat initially focuses on nonpayment, it quickly morphs into a demand for work on the theory that the debtor has chosen to be poor by not working hard enough.

These are not idle threats. Our research found that, on any given day, tens of thousands of people are in jail or prison for violating probation or parole conditions that require work and/or payment of court-ordered debts.  In major cities, a shocking 15% of all African American fathers are at some point incarcerated as a child-support enforcement action, and Black noncustodial fathers face that result ten times more often than others.  In Los Angeles alone, upwards of 100,000 people a year are ordered to perform unpaid community service, often for hundreds of hours, or go to jail.  These outcomes arise at the intersection of race and class: by vast margins, those incarcerated for insufficient work disproportionately are people of color and have incomes below or near the poverty the line.

These threats can disempower workers in several ways.  Policing the threat requires deciding which work counts and when work can be refused—because it requires a 70-hour week?  a four hour commute?  rotating shifts that wreak havoc with child-care?  The result is that workers may lose the liberty to quit a bad job or, when unemployed, to hold out for a better one, enabling employers to lower labor standards.  Faced with worker resistance or organizing, employers gain the power to retaliate with a termination that could trigger incarceration, not just impoverishment.  If workers cannot find a job under even these imbalanced terms, they may be forced into substandard forms of work entirely outside labor and employment laws.  This happens when the “alternative to incarceration” for those unable to pay criminal justice debts is to “work off” those debts through unpaid “community service.”

These dynamics implicate all workers.  Even those who do not face these threats personally still risk displacement, or demands for concessions, when employers can substitute more vulnerable workers on degraded terms.

Similar problems are familiar from prison labor, immigrant labor, and welfare work requirements.  But they are not part of today’s conversation about mass incarceration and work.  Instead, “barriers to employment” is the mantra, and exclusion from work is the problem.  This conception of the “new Jim Crow” reflects a peculiar amnesia about the old Jim Crow.  It renders paradigmatic the 14^th Amendment register of employment discrimination while erasing the 13^th Amendment register of coercive exploitation.  Historically, however, these have gone together, and much the same seems likely today.

Indeed, complementing labor exclusion with labor subordination may be on the rise, ironically promoted by reformers seeking alternatives to brutal—and expensive—incarceration.  Similarly, in the late 1980s/early 1990s, mainstream Democrats embraced welfare work requirements—enforced by denying benefits—to counter calls to eliminate welfare outright.  Today, many are embracing these new work requirements—enforced by incarceration– as a progressive alternative to locking people up straightaway.

There is little known and much to learn about these “get to work or go to jail” threats.  At a minimum though, these dynamics both reiterate and elaborate how state power and labor markets are deeply intertwined in ways that can reflect and reproduce the racial hierarchies shaping them both.