This is part two of a series that uncovers coerced labor in community service programs as operated via the criminal legal system, a widely recognized engine of anti-Black structural racism and economic inequality. In this brief we survey labor protections in community service programs across the states, with a focus on the undermining of labor standards. We find that while the premise and purpose of community service programs is that people are working, community service workers are broadly excluded from hard-fought and basic worker protections. The exclusion of community service work programs from standard protections is a further example–alongside more familiar examples of prison labor or incarcerated emergency responders like wildland firefighters–of how criminalization directly creates, manages, or brokers unprotected and forced labor. These work programs undermine labor standards for all workers. Our recommendations aim to expand worker protections, combat structural racism, and build worker power.

Introduction

The twin expansions of fissured work and anti-Black criminalization over the last 60 years in the U.S. have contributed to the rise of workplaces directly created, managed, or brokered by the criminal legal system. In these settings, workers labor under the threat of incarceration if they are deemed noncompliant.[1] This brief is the second in a series examining one such setting: court-ordered community service work programs. The first brief set out our analysis of how such programs are best understood as low-road labor supply systems, expanding anti-Black criminalization into the workplace, lowering labor standards for all, and undermining workplace organizing.[2] Indeed, the euphemism “community service” and its association with volunteer work itself obscures how these fundamentally coercive work programs operate at a compounding intersection of anti-Black criminalization and economic inequality.  

This brief presents detailed findings from our examination of labor protections and lack thereof in state statutes governing community service. Community service work programs are ubiquitous. All 50 states and the District of Columbia (hereinafter “states” for simplicity) have statutes authorizing them in at least some criminal cases, and 42 states authorize such work programs as a way to “work off” court-ordered debt.[3] Community service programs order unpaid workers to labor in both public and private workplaces, alongside conventional employees, and across many types of work, including nonprofits; data entry; warehousing; custodial services; food handling; park and roads maintenance; and landscaping. While difficult to identify the precise number of community service workers nationally, one study found that over 100,000 people in Los Angeles County register to perform court-mandated community service each year.^[4] There is no reason to think Los Angeles County is an outlier.

Despite the ubiquity of court-ordered community service, systematic attempts to understand their operation and legal structure have been limited, especially with regard to labor protections.[5] In this 50+ state survey, we examine where and how community service workers are included in protections characteristic of general labor standards like wage rates, workplace safety, and other protections. The premise and purpose of community service programs is that people are working, but are they protected as workers? Without basic labor rights, community service programs are a recipe for exploitation, using the criminal legal system’s power to punish as a means to deliver a labor supply with minimal protection from labor law and maximum vulnerability through criminal law.

What are community service work programs?

Broadly, “community service” refers to court-ordered, unpaid work programs that operate at the threat of incarceration, reincarceration, and/or prosecution for noncompletion. Community service work programs arise through a variety of legal mechanisms most often in criminal and traffic courts, primarily as:

1. Direct sentencing to perform community service as all or part of the punishment for conviction of a criminal offense or infraction;

2. A condition of a court-supervised release program such as pre- or post-conviction diversion, probation, or parole, where violation of a condition may trigger incarceration and/or prosecution; or
3. An alternative to paying court-imposed fines, fees, or other financial sanctions by “working off” the court debt instead, where nonpayment otherwise could result in incarceration or other criminal sanctions.

All 50 states authorize community service work programs in at least some criminal cases, and at least 42 states use these work programs as an alternative to court debt. These work programs operate in both public and private workplaces and across many types of work, including non-profits; data entry; warehousing; custodial services; retail; park and roads maintenance; landscaping; and agricultural work. Community service workers are regularly assigned to work alongside conventional employees.

Individuals ordered to community service work programs generally report to either probation and parole departments to be assigned a workplace, or in some jurisdictions, to private non-profits contracted with the court to function as a referral agency. Such contracts with third-party non-profits are structured in part to shield the court from liability, such as for injury to or by community service workers.[6]

We organize our analysis around three potential areas of protection:

1. General labor standards

U.S. labor and employment laws generally provide employee protections in a wide range of areas including minimum wage, overtime, discrimination, family and medical leave, workplace safety, social insurance protections when unable to work, and rights to organize and bargain collectively.

To what extent do community service workers receive such protections, either as employees or through functionally similar means?

2. Forced labor

The Thirteenth Amendment to the U.S. constitution, echoed in many state constitutions, declares that “involuntary servitude” “shall not exist” in the U.S., and a number of federal and state statutes bar a somewhat broader category of “forced labor.” These protections provide a foundation for worker power by protecting the right to refuse or quit employment.

Do community service workers have a meaningful right to refuse or quit work without facing incarceration as a result, including by substituting some other activity that can satisfy criminal legal obligations?

3. Displacement of other workers

Employers can be incentivized to substitute conventional employees with community service workers. Community service work programs permit employers to avoid wages, payroll taxes, and compliance with other labor standards, as well as to wield power over workers with threats of incarceration.

Are community service programs prohibited from engaging in such “displacement,” using community service workers to eliminate hours or positions in conventional jobs?

Analyzing state statutes across the country, we find that community service workers are broadly excluded from hard-fought and basic worker protections. The overwhelming majority of these work programs provide workers no pay, few protections even for “working off” debt at the equivalent of the minimum wage, no mechanism regulating workplace safety or compensation for injury, and no protection against harassment or other harms. They do so against the backdrop of the ubiquitous threat of incarceration and without safety valves that would prevent the forced labor that arises when workers are presented with the choice “get to work or go to jail.”[7] Protections against using community service programs to displace conventional workers are virtually nonexistent.

To summarize our findings across all states and all types of protection that exist in at least one state, we focus on five major types of protection:

• Using minimum wage rates to set credit for “working off” court debt;
• Providing full workers’ compensation protections;
• Setting maximum hour or rest break requirements analogous to employment protections against overwork;
• Avoiding forced labor by giving defendants a choice to fulfill community service obligations with another productive activity; and
• Protecting against displacement.

Using these criteria, we find the following:

• The majority of states (29) provide none of these protections to community service workers;
• Not a single state provides all five of these major types of protection;
• Only three states have more than one of these major protections.

In short, community service work programs operate almost entirely “below the floor” of hard-fought and basic workplace protections of employment law, threatening both community service workers and conventional employees alike.

How the survey was conducted and reported

We conducted a comprehensive survey of state community service statutes as they existed in 2021 and coded the results for a variety of characteristics, not all reported on here. The labor-related provisions central to this brief were systematically checked and updated as of 2022; subsequent changes may be noted where they have come to our attention.

State laws governing court-ordered community service often are quite fragmented. Within a single state, there might be multiple, separate laws creating these programs with rules that vary depending on the underlying criminal offense in question, whether the defendant is a youth or an adult, the procedure by which community service is imposed (direct sentence vs. conditional release vs. as an alternative to cash payment), and so on. In order to avoid undue complexity in the findings below, we report a state as providing a given type of protection if it does so for any of the community service programs it authorizes. In many cases, other programs within the same state may lack similar protections. As a result, this approach errs in the direction of overstating how many programs have labor protections, which makes the widespread absence of such protections even more striking.

Endnotes

[1] Elsewhere, we have called this threat of state violence through criminal punishment at work “structures of worker criminalization” and the “carceral labor continuum.” Noah Zatz, “The Carceral Labor Continuum,” Inquest, June 1, 2023, https://inquest.org/the-carceral-labor-continuum; Han Lu, Worker Power in the Carceral State (New York: National Employment Law Project, 2022), https://www.nelp.org/wp-content/uploads/Worker-Power-in-the-Carceral-State-10-Proposals.pdf.

[2] Han Lu & Noah Zatz, Minimum Protection, Maximum Vulnerability: Labor Standards in Court-Ordered Community Service (National Employment Law Project 2024), https://www.nelp.org/app/uploads/2024/04/Minimum-Protection-Maximum-Vulnerability-Labor-Standards-Court-Ordered-Community-Service-March-2024.pdf.

[3] Lucero Herrera et al., Work, Pay, or Go to Jail: Court-Ordered Community Service in Los Angeles (Los Angeles: UCLA Labor Center, 2019), https://www.labor.ucla.edu/publication/communityservice.

[4] Id.

[5] For related work, see Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor (Russell Sage Foundation, 2016); Sarah Picard et al., Court-Ordered Community Service A National Perspective (Center for Court Innovations, 2019), https://www.innovatingjustice.org/sites/default/files/media/document/2019/community_service_report_11052019_0.pdf; Herrera et al., supra; Fines & Fees Justice Center, First Steps Toward More Equitable Fines and Fees Practices: Policy Guidance on Ability-to-Pay Assessments, Payment Plans, and Community Service (2020), https://finesandfeesjusticecenter.org/content/uploads/2020/11/
FFJC_Policy_Guidance_Ability_to_Pay_Payment_Plan_Community_Service_Final_2.pdf.

[6] Herrera et al., supra.

[7]  Noah D. Zatz, “Get to Work or Go to Jail: State Violence and the Racialized Production of Precarious Work,” Law & Social Inquiry, 45(2):304-338 (2020), https://doi:10.1017/lsi.2019.56.