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For Short-Staffed Employers, Prison Labor Is a Get-Out-of-Jail-Free Card

In theory, labor shortages should compel employers to improve jobs to attract workers. But they don’t have to, as long as there are workers without rights whom they can exploit instead.

Instead of improving job quality, some employers are responding to the current labor shortage by hiring structurally vulnerable workers, such as incarcerated and formerly incarcerated people, or immigrant and foreign “guest workers.” (Paul Hennessy / SOPA Images / LightRocket via Getty Images)

Headlines are full of dire warnings about labor shortages. “Where is the labor?” asks USA Today. Employers are “begging” for workers, the Washington Post reports. Labor shortages could “jeopardize essential services” and undermine Joe Biden’s infrastructure plan. By some accounts, “worker shortages could cancel Christmas.”

Yet, according to Massachusetts Institute of Technology economist David Autor, the labor crunch is “an opportunity, not a crisis.” “Imagine,” Autor writes in a recent New York Times op-ed, “that the U.S. had a market mechanism that spurred employers to voluntarily pay higher wages, offer better benefits and use workers more productively. Actually, that mechanism exists — it’s called a labor shortage.” And, in fact, a number of reports suggest that at least some US employers are doing just that: increasing wages or offering job perks such as college tuition and referral bonuses — the latter of which are likely preferable to employers, as they are more easily rescinded once the labor market slackens.

But reports also reveal another, more sinister response to the current labor shortage. Instead of improving job quality, some employers are hiring structurally vulnerable workers such as incarcerated and formerly incarcerated workers, or immigrant and foreign “guest workers” who cannot (or are significantly less able to) insist on higher wages and better benefits. So much for the automatic market mechanism that supposedly forces employers to improve jobs when workers are in short supply.

Proponents of such schemes argue that these vulnerable workers attain important benefits when targeted for employment by otherwise short-staffed bosses. Incarcerated workers are said to gain skills and moral rehabilitation from prison labor, while formerly incarcerated workers are said to be less likely to engage in criminal activity if they are employed. Meanwhile, foreign “guest workers” and immigrants are portrayed as “grateful” for jobs that US-born workers are not willing to do.

The evidence for such claims is largely unconvincing, especially when the vast majority of the jobs available to these groups are “bad” in every sense of the word. But even if proponents were right about the benefits of such work for individual workers, the happy talk obscures the profound structural consequences of this approach: If employers can hire maximally exploitable workers such as prisoners, they will not “voluntarily” improve job quality. Prison labor and its cousins take Autor’s optimistic vision of enhanced wages and benefits in response to labor shortages off the table.

Beyond “Work or Starve”

Prisoners, formerly incarcerated workers, guest workers, and undocumented immigrants work under such severe power imbalances that their labor relations are far more coercive than those imposed by capitalism’s standard work-or-starve ultimatum.

In prison, for example, if incarcerated workers “choose” not to work, or if they do not perform the job to their bosses’ liking, they face a range of severe punishments. They can lose access to family visits, phone use, commissary purchases, and all the other basic entitlements that become “privileges” behind bars. Worse, they can be put in solitary confinement: enclosure in a segregated cell for twenty-three hours a day without human interaction — a punishment widely recognized as torture that is nonetheless common in US prisons.

The nearly five million Americans who are not in prison but are still entangled in the criminal justice system (via probation or parole) face similar forms of coercion. As University of California, Los Angeles legal scholar Noah Zatz and colleagues find, the formerly incarcerated can be required to maintain employment as a condition of their freedom. Thus, they labor under the threat of incarceration, which effectively compels them to accept and keep any job, no matter how degraded.

In the case of noncitizen workers, including both “guest workers” and undocumented immigrant workers, US employers have de facto power of deportation. Because guest workers are effectively bound to a single employer, the Southern Poverty Law Center reports, “At any moment, the employer can fire the worker, call the government and declare the worker to be ‘illegal.’” A similar dynamic is in effect for undocumented workers because, under US immigration law, employers are empowered — indeed, obligated — to verify workers’ citizenship status. This means that, at any point, they can “discover” workers’ undocumented status and contact immigration authorities. In both cases, then, employers can convert workers into criminals (“illegal aliens”) — directly for guest workers and indirectly for undocumented workers, by exposing their lack of legal status — leaving them subject to detention and deportation.

In short, as I argue in my book, Coerced: Work Under Threat of Punishment, all these workers labor under the threat of punishment. In addition to the threat of lost wages, they labor under threats of solitary confinement, imprisonment, and detention and deportation, respectively. Because of these additional punishments, they have little capacity to complain about wage theft, workplace abuse, or illegal working conditions, let alone push for better wages and working conditions.

If bosses can simply hire workers like these in times when ordinary labor is in short supply, they have little reason to adjust wages and benefits upward to compensate for labor shortages.

Labor Shortage Loophole

Intentionally seeking out marginalized workers is a time-honored employer strategy to undermine worker solidarity, lower wages, and diminish labor standards. Indeed, corporate America went out of its way to help create many of the structures that produce populations of workers vulnerable to extreme forms of exploitation.

For example, the US agricultural industry supported the mid-twentieth-century Bracero program and its contemporary counterpart, the H-2A farmworker visa program, both of which have allowed agribusinesses to hire migrant workers from Mexico on a temporary basis under the pretext of labor shortages. These programs have been rife with worker abuse, wage theft, and discrimination, while sustaining a “captive workforce that is deprived of economic bargaining power and the right to vote,” according to Farmworker Justice, and artificially lowering wage and labor standards.

News reports that repeatedly proclaim severe labor shortages — and often attribute those shortages to US workers’ purported lack of work ethic and preference for “sitting at home all day doing nothing” besides “collect[ing] government checks” — wrongly suggest that labor scarcity and lazy workers are the problem, rather than the quality of work available. Meanwhile, claims that marginalized workers such as prisoners or “guest workers” benefit from degraded work reinforce the ideological justification of their exploitation.

In theory, labor shortages — we might more accurately call them decent work deficits — can indeed be an opportunity to improve job quality. But that can only happen if we ensure that all workers have full rights, decent pay, and safe workplaces.

Until we eliminate conditions of exceptional vulnerability for some worker populations, labor shortages will simply be an excuse to seek out more exploitable workers rather than improve jobs across the board. As ever, “Injustice anywhere is a threat to justice everywhere.”