Chapter 2: Lawful Employment and Notification of Change in Employment (Probation and Supervised Release Conditions)

A. Statutory Authority

Under 18 U.S.C. § 3563(b)(4), the court may provide that the defendant “work conscientiously at suitable employment or pursue conscientiously a course of study or vocational training that will equip him for suitable employment.”

Under 18 U.S.C. § 3563(b)(17), the court may provide that the defendant “notify the probation officer promptly of any change in...employment.”

B. Standard Condition Language

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from doing so.  If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses you from doing so. If you plan to change where you work or anything about your work (such as your position or your job responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or expected change.

C. Purpose

1. This condition serves the statutory sentencing purposes of public protection and rehabilitation. 18 U.S.C. § 3553(a)(2)(C) and (D).
2. This condition enables the probation officer to satisfy the statutory requirements to keep informed of the conduct and condition of the defendant and aid the defendant and bring about improvements in his or her conduct and condition. 18 U.S.C. §§ 3603(2)-(3).
3. This condition allows the officer to implement supervision methods demonstrated by social science to be effective at achieving positive outcomes.
   1. Research suggests that correctional interventions that follow the principles of evidence-based practices (e.g., the risk principle, the need principle, and the responsivity principle) promote positive change in the defendant and reduce the probability of recidivism. One of the evidence-based practices principles is that officers should address criminogenic needs, including unemployment. Criminal behavior increases with frequent unemployment and longer periods of unemployment. There is also evidence for the importance of obtaining meaningful, long-term employment in desisting from crime (see: Chapter 1, Section III(A)(1)).
   2. Research suggests that exposure to antisocial associates increases the probability of recidivism. Employment in a suitable environment may reduce access to antisocial peers and increase associations with prosocial peers (see: Chapter 1, Section III(A)(2)).
   3. Research suggests that the probability of recidivism is reduced when defendants develop and maintain prosocial bonds to work (see: Chapter 1, Section III(A)(3)).
   4. Research suggests that for a criminal event to occur there must be an opportunity to commit a crime. Probation officers may work with defendants on supervision, family members, neighbors, other community members, and law enforcement agencies to structure and monitor the defendant’s routine activities and reduce the extent to which defendants come into contact with criminal opportunities. Probation officers may also monitor defendants through contacts with the defendant and his or her social network, verifying employment, restricting travel, and providing positive reinforcement for prosocial routine activities. Lawful employment may reduce opportunities for crime by increasing monitoring of activities by employers and other prosocial individuals and providing structured and prosocial routine activities (see: Chapter 1, Section III(A)(4)).
4. Lawful employment may also help defendants develop financial stability and pay any court-imposed fees, fines, or restitution.

D. Method of Implementation

1. Federal regulations define full-time employment as at least 30 hours per week.¹
2. Probation officers are to assist all defendants, as necessary, in seeking and maintaining employment commensurate with their earning ability.
3. Securing a job is difficult for many former prisoners as they may lack basic skills, have low levels of education, and have limited work experience history. Additionally, formerly incarcerated individuals often face restricted access to particular jobs or opposition from employers because they are reluctant to hire someone with a felony conviction.
4. Defendants who lack educational and employment skills will require referral for correctional interventions suitable to their circumstances, such as job training, education, or literacy. Defendants who have not had experience holding down a job will also likely require job referral services and assistance in acquiring basic job search, application, and interview skills and assistance in preparing for the work environment. Defendants who do not actively seek employment might be required to report daily or weekly on their job search activities.
5. Under this condition, the defendant is required to maintain lawful employment unless excused by the probation officer. Reasons for excusing a defendant from full-time employment may include schooling, vocational training, childcare obligations, eldercare obligations, disability, age, or a serious health condition. 
6. Whatever the reason for employment problems, probation officers should strive to have all defendants productively occupied throughout the year, and no defendants should be permitted to be idle for a prolonged period unless excused due to disability or earned retirement. Probation officers should consider requesting a period of community service (see: Chapter 3, Section IX) for those defendants who are not productively occupied.
7. Employment or the defendant’s efforts at securing employment are to be verified in every case. Employment may be verified through a careful review of paper documentation (including, where appropriate, tax returns), contacts with employers, or observation of the defendant at work. The choice of verification strategies is to be determined by the nature of the employment, the potential for loss of employment, the financial responsibilities of the defendant, and the risk factors presented by the employment. Probation officers should be as discreet as possible in making employment inquiries and have case-specific reasons before undertaking verification strategies that have the potential to jeopardize employment.
8. In higher-risk cases where employment has been identified as a risk factor, the probation officer should ordinarily observe the place and general operation of the employment and make direct contact with the employer.
9. Probation officers are to respond immediately to indications of heightened risk by formulating strategies designed to prevent or ameliorate the effects of behavior that is not in compliance with the conditions of supervision. Among the early warning signs that a defendant may be at risk to recidivate are that the defendant changes jobs frequently for no apparent reason.
10. At the beginning of the supervision process, the probation officer explains to the defendant how notification of changes in employment should be made (i.e., by telephone, in writing, etc.).
11. If the defendant intends to change or has changed the place or circumstances of his or her employment, the probation officer assesses whether the change is appropriate to meet the defendant’s risk and needs and whether it poses any risk to the defendant or to others.
12. When a defendant changes employment frequently, abruptly, or for reasons that are unclear, the probation officer should contact the former employer to determine the circumstances under which the defendant left. Contact with the former employer may highlight specific issues, such as absenteeism or conflicts with supervisors or co-workers, that may indicate a need for correctional intervention.

¹ See, e.g., Internal Revenue Service Special Rules Relating to Group Health Plans, 26 C.F.R. § 54.9831–1.