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San Diego Law Review

Document Type

Article

Abstract

Employers’ use of background checks to exclude long-term temporary workers (“permatemps”) with criminal records from permanent employment —despite proven performance—creates a hidden barrier to advancement in the labor market.  Permatemping, where workers remain in the same role for months or years through a staffing agency, has grown alongside the rapid expansion of temporary work, which has nearly tripled since the 1990s. U.S. staffing agencies now hire nearly 13 million temporary and contract workers each year, and a significant portion of this workforce has criminal records.  For many, staffing agencies are not just a last resort, but a deliberate pathway to secure permanent jobs with host employers.  Yet when conversion—the transition from a staffing agency position to a permanent direct-hire role with the host employer—is conditioned on passing a background check, record-based barriers routinely prevent permatemps from translating proven reliability into stable employment, locking them into precarious positions despite months or years of successful performance.

Because nearly one in three U.S. adults—over 70 million people—have a criminal record, and temporary jobs are a common reentry route, this dynamic affects a substantial share of the contingent workforce and shapes long-term labor market inequality.  By denying conversion based on background checks rather than demonstrated performance, employers create a two-tiered system of accountability that relegates permatemps with records to permanent second-class status, reinforcing both economic and racial inequality.  But why do host employers bar proven permatemps with criminal records from permanent roles?

This Article examines the economic, legal, and organizational incentives that drive employers to exclude performing permatemps at the point of conversion.  It critiques the assumptions underlying these exclusionary practices and situates background checks as a key mechanism within a broader system that stigmatizes contingent workers through credentialing based on criminal history.  For permatemps already embedded in the workforce, background checks are not a neutral screening device but a gatekeeping mechanism that disproportionately excludes low‑income and minority workers, wasting human capital and undermining the rehabilitative ideals of the criminal legal system.

In response, this Article offers legal and policy solutions designed specifically to address the permatemp context.  Prioritizing non-statutory reforms—including employer policy changes, procurement standards, and labor agreements—it proposes mechanisms to align conversion decisions with demonstrated performance and reduce reliance on background checks as a proxy for risk.  By focusing on workers already performing in the job, these reforms target the unique exclusion permatemps face at the point of conversion and seek to transform temporary success into permanent opportunity, ensuring that stigma does not outweigh evidence of reliability and value.

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