Prison Pay: Why Closing The ‘Slavery Loophole’ Isn’t Enough

July 16, 2021

We can’t celebrate Juneteenth as a federal holiday on one end of the spectrum and still have in our Constitution of the United States of America an exception that allows for slavery for people who have been convicted of crime,” Williams told Law360 recently.

People incarcerated for criminal offenses who work in facilities’ maintenance or in state correctional industries to make goods, like eyeglass lenses or license plates, are not constitutionally entitled to minimum wage. This arrangement is a vestige of the 13th Amendment’s abolition of slavery and “involuntary servitude” save for “as a punishment for crime whereof the party shall have been duly convicted.”

But circuit courts have also repeatedly ruled that the custodial relationship between an incarcerated person and their imprisoner/boss does not constitute an employee-employer relationship under the Fair Labor Standards Act.

David Fathi, the director of the American Civil Liberties Union National Prison Project, said the focus on the 13th Amendment’s exclusionary clause is a bit of a red herring.

“The 13th Amendment is a national embarrassment it’s an abomination,” he said. “But it’s really not the fundamental source of mistreatment of prisoner workers. The fundamental source of mistreatment of prisoner workers is the failure of Congress and state legislatures to require, as they easily could, that prisoner workers enjoy similar or the same protections as workers in the outside world.”

Abolition Amendment’s Impact is Hard to Predict

It is unclear what immediate impact the abolition of the 13th Amendment’s exclusionary clause would have on incarcerated workers’ rights.

                                         *             *            *

When asked whether separate legislative efforts would be needed to grant wage protections to incarcerated workers, Williams said she thought that was “a different conversation and a different policy proposal that we should absolutely look at.”

For her, as a Black woman in the South, this action “is strictly focused on making sure that we no longer have an exception for slavery in this country,” she said.

The impact or potential lack thereof of doing away with the 13th Amendment exclusion can be seen in Colorado, said Lauren-Brooke Eisen, the director of the Justice Program at the Brennan Center for Justice at New York University School of Law. The state eliminated the slavery loophole from its constitution through a ballot initiative in 2018, Eisen said.

“Eliminating the exception clause just says they won’t be forced to work for free,” she said. “But because Colorado incarcerated workers were being paid something, it didn’t actually have an on-the-ground impact.”

The Colorado Department of Corrections said in an email to Law360 that the state’s incarcerated workers in modern times have always been paid, and so the ballot initiative didn’t affect prisoner wages.

According to the department, imprisoned workers in Colorado can make between $0.86 and $15 per hour depending on their job, and the state DOC is engaging with companies to try to create more minimum wage opportunities.

“We feel we have a duty to prepare inmates for release by offering them jobs that not only train them in marketable skills but also allow them to save money for release,” the DOC said.

Eisen reiterated the significance of the ballot initiative, however.

“It sends a really important message from voters in Colorado that it’s immoral to force incarcerated people to work without pay,” she said.

‘Distorting’ the FLSA

The crux of incarcerated workers’ failed efforts to secure pay for hours worked comes down to the idea that inmates’ particular circumstances they are in custody, their basic needs are met, and they are not part of the free labor market negate the kind of employee-employer relationship envisioned by Congress under the FLSA.

Litigation involving civil immigration detainees in privately run facilities has wrestled with this recently. These individuals, unlike their criminal detention counterparts, are free from the 13th Amendment’s exclusionary clause.

Adam Koshkin, an attorney with worker-side firm  Outten & Golden LLP, is representing detainees in one such case in Colorado federal court against private detention operator GEO Group Inc.

He said that his clients, some of whom were paid $1 a day, and other immigration detainees would clearly not be affected by abolishing the slavery exclusion because “they are not working as punishment for a crime.”

Plus, the ALCU’s Fathi pointed out, civil detention facilities’ work programs are ostensibly voluntary, “putting aside for a moment the extent to which anything in a prison or detention setting is ever truly voluntary.”

Still, courts have determined that detainees are not covered by the FLSA “without any clear reason or any clear articulation,” Hancock said.

“I think it’s useful to bear in mind there’s no specific exemption in the FLSA that could plausibly extend to civil detainees, and one of the core principles of the FLSA is unless you’re specifically exempt then you’re covered,” he said.

The courts have bypassed that idea by saying, “We don’t have to get to exemptions because you’re just not part of that universe of people that the act was intended to protect,” he added.

Hancock also said that by concluding civil detainees have their basic needs met and are not entitled to wage protections, the courts are “distorting the whole framework of the Fair Labor Standards Act.”

“If you’re going to go down that road, then in every wage and hour investigation, you’re going to have to ask if this person wasn’t being paid by their employer, would they otherwise have the basic necessities of life provided?” he said.

Recent Litigation

Recent cases involving civil detainees illustrate how the courts continue to rule that people working behind bars cannot be employees.

In a March Fourth Circuit decision in Ndambi et al. v. CoreCivic Inc. a panel ruled that people being detained at a U.S. Immigration and Customs Enforcement facility operated by CoreCivic were not employees, in part because they were not akin to free workers able to ditch their jobs and find other ones at will.

“Put simply, ‘there is too much control to classify the [detainer-detainee] relationship as one of employment,'” wrote U.S. Circuit Judge J. Harvie Wilkinson III, quoting a 1992 Seventh Circuit opinion in Vanskike v. Peters.

That assessment of the FLSA’s application to detainees seems “inconsistent” with the way employment status is generally determined today, Koshkin said.

“The more that an employer controls a worker’s work, the more likely that worker is to be an employee,” he said.

It’s “strange” that the decision in the CoreCivic case suggests “there’s some invisible line when control points towards employee status and suddenly stops and does not point to employee status,” he said.

In Menocal et al. v. The GEO Group Inc., the case Koshkin is involved in, U.S. District Judge John L. Kane shut down the detainees’ claims under Colorado state minimum wage laws, writing in a 2015 decision that “although immigration detainees appear to fall under the broad definition of ’employee,’ so do prisoners,” and the Colorado Department of Labor had concluded prisoners cannot be employees.

The judge also said that since the detainees, like those in prison, do not need wages to support themselves, they do not need minimum wage protections.

Koshkin pushed back against that conclusion.

“Just because the prison or detention facility is providing you food and shelter doesn’t mean that your basic needs are being met,” he told Law360. “Earning money from your labor isn’t just about meeting your basic needs.”

While the minimum wage claims were rejected in that case, claims for violations of the Trafficking Victims Protection Act and unjust enrichment remain, the latter of which dovetails on pay issues.

By compensating certain detainees $1 a day for work, GEO “undermines local labor markets” by “replacing community labor with detainee labor,” Koshkin said.

In a parallel case in Washington federal court against GEO, the detainees say they are employees under the state’s minimum wage law in part because they are economically dependent on the company.

U.S. District Judge Robert Bryan declared a mistrial in June because the jury could not agree on a verdict. A new trial is scheduled for October.

Pass the Time, Earn Skills

Beyond the slavery loophole, practical and legal justifications for paying incarcerated people subminimum wages are that the jobs offer escape from the mundanity of life behind bars and can in some instances serve as training opportunities.

In Fathi’s experience, most people in prisons want to work.

“But at the same time, given the very substantial power inequality between prisoners and their employers, there is an ever-present potential for exploitation and abuse to which we need to be very attentive,” he said.

Correctional industries’ “rehabilitative, rather than pecuniary interest” in putting incarcerated people to work nullifies the employee-employer relationship under the FLSA, according to the seminal 1993 Fourth Circuit opinion in Harker v. State Use Industries.

The ruling found that an imprisoned person was not entitled to minimum wage for work he performed at a graphic print shop run by the state of Maryland.

The Maryland Division of Corrections’ attempts to train inmates for future private employment “does not mean that inmates have achieved such a goal while still incarcerated,” the opinion said.

Some incarcerated people have the opportunity to learn soft skills, such as interviewing and general workplace etiquette, or hard skills, like operating forklifts, an in-demand skill at today’s distribution warehouses, said Wil Heslop, director of operations at the National

Correctional Industries Association, or NCIA, a nonprofit professional group.

He likened correctional industries to reentry programs that lower recidivism and help provide incarcerated individuals with career paths.

“We try to, in a way, mirror the private industry because then that really gives the advantage to the worker in correctional industries to then not only get a job but keep that job,” Heslop said.

But the Brennan Center’s Eisen said states benefit significantly from what she described as “free labor,” and by not paying incarcerated workers living wages, “they’re not going to be set up for success” once they return to society.

While some critics of the system might decry what they see as “free labor” in the guise of training programs, Kelli Baxter, executive director of the NCIA, said she disagrees with the use of the term when describing incarcerated people working in correctional industries.

“My question is,” she said, “What are we not paying for? When you’re in college, if you’re on a scholarship, you don’t get money in your hands, but your food is paid for, your housing is paid for, your books are paid for, so I have a hard time using the term.”

Ultimately, Fathi said that while the 13th Amendment permits forced labor of convicted prisoners, “it doesn’t require it.”

“You could certainly imagine a perfectly rational and functional legal system in which incarcerated people who work were covered by laws like the FLSA,” he said, “but that’s just not the choice we’ve made in this country.”