A Reemployment Right for People in Pretrial Detention

Authors

• Jordan Laris Cohen

Document Type

Article

Abstract

Job loss is a major collateral consequence of pretrial detention. It frequently results from even short periods of detention and can have cascading and long term effects on income, housing security, family stability, and likelihood of incarceration—all despite the fact that people in pretrial detention are entitled to a presumption of innocence and indeed may never be found guilty of an offense. Given existing racial disparities in arrests, bail determinations, and bail amounts, job loss from pretrial detention further drives racial inequalities in employment and income. While job loss from pretrial detention inflicts substantial social harms and undermines due process, current policy solutions, such as ban-the-box laws, fail to address it. This Article proposes a novel solution, reframing the issue as a matter of protected leave rather than traditional employment discrimination law, and drawing on the unexpected source of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). USERRA guarantees deployed service members a right to reemployment upon return from tours of duty. This Article proposes a similar right to reemployment for people released from pretrial detention whose charges are still pending or have resulted in a disposition other than conviction, subject to certain limitations present in USERRA and potential carve-outs for certain charges or job types. Eighty years of experience under USERRA and its predecessors demonstrate that a right to reemployment is practicable for employers and an effective mechanism to ensure job stability during periods of often sudden and unpredictable leave. Such a right would promote fundamental, widely held due process values and counteract the substantial social harms of job loss from pretrial detention.

DOI

10.37419/LR.V13.I1.4

First Page

187

Last Page

236

Recommended Citation

Jordan L. Cohen, A Reemployment Right for People in Pretrial Detention, 13 Tex. A&M L. Rev. 187 (2025).
Available at: https://doi.org/10.37419/LR.V13.I1.4