Chapter 3: Employment Restrictions (Probation and Supervised Release Conditions)

A. Statutory Authority

Under 18 U.S.C. § 3563(b)(5), the court may provide that the defendant “refrain, in the case of an individual, from engaging in a specified occupation, business, or profession bearing a reasonably direct relationship to the conduct constituting the offense, or engage in such a specified occupation, business, or profession only to a stated degree or under stated circumstances.”

B. Sample Condition Language

You must not engage in an occupation, business, profession, or volunteer activity that would require or enable you to _______ without the prior approval of the probation officer.

You must not work in any type of employment without the prior approval of the probation officer.

C. Purpose

1. This condition serves the statutory sentencing purposes of public protection. 18 U.S.C. § 3553(a)(2)(C). Defendants may be prohibited from working in certain industries (e.g., financial, medical, legal) to prevent future criminal offenses.
2. This condition enables the probation officer to satisfy the statutory requirements to keep informed of the conduct and condition of the defendant and report the defendant’s conduct and condition to the sentencing court. 18 U.S.C. § 3603(2).

D. Method of Implementation

1. The requirement that a defendant refrain from engaging in a particular type of employment generally should be imposed by the court as a formal special condition of supervision.
2. Probation officers verify compliance with this condition by contacting the defendant’s employer to determine whether the defendant’s job complies with the employment restriction.¹
3. For the condition requiring that all employment must be approved in advance, the probation officer may request that the defendant provide information about the prospective employment prior to commencing employment and may in some cases contact the prospective employer to arrange a visit to confirm that the location is appropriate and assess any risk factors.
4. Probation officers also remain aware of the defendant’s activities through community observation, which is fieldwork that does not involve a direct contact with the defendant or the defendant’s social network. It may be the preferred way to unobtrusively monitor compliance with specific conditions in a way that does not intrude on the activity itself. For example, observation of a defendant’s work site may be appropriate in some cases. Although occasional observations of this nature may be productive, prolonged fieldwork such as this is generally not appropriate under Judicial Conference policy.
5. Probation officers verify compliance with employment restrictions by close scrutiny of the financial information submitted by the defendant and independent verification (e.g., credit checks, home visits). Probation officers should periodically conduct a comparative assessment of the financial documents obtained to review their consistency; identify any unusual deposits, withdrawals, or purchases; and determine spending patterns.
6. The physical and psychological harm caused by sex offenses is particularly traumatic, and probation officers should give priority to minimizing the impact on victims and to preventing new sex crimes from occurring. Not all persons with a history of committing sex offenses are alike. Rather, they present a spectrum of criminogenic risk and therapeutic need. Supervision techniques should vary accordingly. Certain types of employment may not be appropriate for certain defendants with a history of sex offenses, particularly positions that place the defendant within close proximity to children.

¹ For a further discussion of third-party notification, see Chapter 2, Section XII.