By: Katie Miller*
I. INTRODUCTION
The 13th Amendment of the U.S. Constitution abolished slavery “except as a punishment for crime”,[1] meaning that prison labor is not unconstitutional.[2] The increased reliance on prison labor as a source of cheap labor has infamously become known as the Prison Industrial Complex – a system that perpetuates the inhumane working conditions of incarcerated workers in which they make $0.10-$0.90 per hour[3] despite producing essential goods and services that contribute to the betterment of the society and the economy.
According to the Department of Justice, the two goals of detention and incarceration are to “maintain and operate Federal prisons in a safe, secure, and humane manner; and provide productive work, educational, and other programs to meet inmate needs and to help
reintegrate former inmates into society.”[4] These goals severely conflict with the reality of prison labor. If they are to be met, amending the Fair Labor Standards Act (FLSA) to provide a minimum wage and working conditions that meet basic human rights standards for incarcerated workers is a good starting point. Their valuable contributions and their humanity deserve the respect that the FLSA was designed to secure.
II. BACKGROUND
The FLSA was enacted in 1938 in response to the Great Depression.[5] It seeks to eliminate “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.”[6] The FLSA protects “employees” and does not explicitly exempt incarcerated workers from its protection,[7] although many courts have interpreted it as not including incarcerated workers.
But the inclusion of incarcerated workers under the FLSA is necessary to ensure that they too experience a minimum standard of living. Incarcerated workers are forced to work long hours for minimal pay,[8] if any pay at all,[9] conditions that are illegal for non-incarcerated workers to endure because of the FLSA. Despite performing important and sometimes dangerous public duties,[10] prisoners generally do not have access to injury compensation. Additionally, prisoners do not receive adequate training to perform these jobs and are therefore, unqualified to perform them post-release.[11] As a result, it does not appear that prison labor serves incarcerated people as optimally as it should.[12]Even in the special case that they are sufficiently trained and qualified, their criminal record makes it hard to find employment post-release, preventing them from having a reliable source of income.[13] It is a system of continuous exploitation. Additionally, incarcerated people rely on their wages to access necessary resources such as feminine hygiene products[14] and e-communications.[15] Such inefficiencies in the prison system can be corrected to give incarcerated people a greater feeling of control over their own well-being and a connection to their loved ones.
III. ANALYSIS
The FLSA applies to “employees” who are defined as “any individual employed by an employer.”[16] Despite this circular definition, the FLSA explicitly makes exemptions for volunteers and the immediate family of an employer engaged in agriculture.[17] Because the FLSA does not specifically exempt incarcerated workers, it is still possible for them to be categorized as employees. Further, “‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency.”[18] It stands to reason that prison officials, such as wardens and supervising staff, may fit this definition of employer since they act in the interest of the Department of Justice, a public agency.
Still, the decision of whether or not to consider incarcerated workers as employees has been left to the courts which have tended to favor not considering them employees, asserting that it was unlikely that Congress had incarcerated workers in mind when creating the FLSA.[19] However, when Congress created the FLSA, it was not focused on a specific type of worker. Rather, it was focused on remedying the general state of poor social and economic well-being, stating that “[l]ow wages, long working hours and high unemployment plagued the Nation, which was then in the midst of an unprecedented depression.”[20] The remedying of these issues poses a strong parallel to issues that incarcerated workers face, considering that “the unemployment rate for FIPs [formerly incarcerated persons] in [2008] was about 27 percent, compared to just over 5 percent for the general population.”[21] These issues are heightened in the context of prison labor in that incarcerated workers also suffer a loss of freedom and, many times, poor treatment within prison walls.[22]
Therefore, although incarcerated workers may not have been at the forefront of Congress’ discussions, the characteristics of their work seem to fall under the FLSA’s stated purpose of ensuring a minimum standard of living.[23] This is important now more than ever as the prison population – and consequent reliance on prison labor – has significantly increased since the creation of the FLSA in 1938.[24] If the FLSA were created today, incarcerated workers likely would have been considered explicitly because of prison labor’s parallels to the Great Depression. But such consideration and inferences would not necessarily be enough to favor classifying incarcerated workers as employees in the eyes of all members of Congress.
Attempts to make incarcerated workers an exempted group may fail because of the reasoning Congress would have to supply. Similar to the courts’ reasoning in cases that addressed the dilemma,[25] members of Congress would likely argue that these poor working conditions and wages serve as part of their punishment thus giving no grounds to challenge their constitutionality under the 13th Amendment. In fact, the failure to amend the FLSA despite the several cases broaching the issue seems to demonstrate this current apathy of Congress to the subject.
It should be noted that proponents against the judicial scrutiny and Congressional apathy to the subject could and should argue that this reasoning supporting denial of FLSA protections would violate the 8th Amendment’s prohibition of “cruel and unusual punishment”[26] and prioritize the economy over standard of living – which is directly in opposition to the purpose of the currently enacted FLSA. Moreover, all hope is not lost as some members of Congress may favor including incarcerated workers under the FLSA when taking into account their attempts to increase accountability and transparency in prison practices more generally.[27]
Lastly of importance are the financial and political incentives that could sway Congressional decision-making on the topic. It has been suggested that some members of Congress may support excluding incarcerated workers due to the financial incentives prison labor provides—and, even if this is not intentional, it could leak into subconscious decision-making.[28] Congress’ stance on this issue may also be impacted by the beneficial assistance federal prison labor provides to military supply efforts, that is, producing “100 percent of all military helmets” along with war supplies and other equipment.[29] The idea of amending the FLSA to classify incarcerated workers as employees likely will not come from an unprompted uprising by members of Congress. Just as it is believed that the FLSA was passed due to political pressure from the working class during the Great Depression,[30] incarcerated workers will not get the inclusion and justice they deserve until Congress experiences political pressure from society.
IV. CONCLUSION
Because exploitative prison labor runs rampant in federal, state, and private prisons,[31] the most effective way to ensure justice and honor the humanity of incarcerated workers would be to amend the Constitution to remove the 13th Amendment’s exception clause. Without the significant political capital that it would take to amend the Constitution today, Congress should look to first amend the FLSA to include incarcerated workers. In the absence of Congressional inertia, the spark for change will need to come from the political process and the American voters[32]—a cause many should be motivated to consider at the ballot box given the issues with prison labor today[33]and the purpose of the FLSA.[34]
Footnotes:
[1] U.S. Const. amend XIII, § 1.
[2] See Emory v. United States, 727 F.2d 1119 (Fed. Cir. 1983).
[3] See State and Federal Prison Wage Policies and Sourcing Information, Prison Pol’y Initiative (Apr. 10, 2017), https://perma.cc/U2EY-UCM9.
[4] See FY99 Accountability Report: Detention and Incarceration, U.S. Dep’t of Just. (1999), https://perma.cc/6VED-55QD.
[5] See Marc Stier, The Minimum Wage Was Created during the Great Depression. We Need to Raise it during the Pandemic Recession, Keystone Rsch. Ctr. (Mar. 7, 2021), https://perma.cc/S2G8-JQ4A.
[6] 29 U.S.C.A § 202(a).
[7] See Carter v. Dutchess Cmty. Coll., 735 F.2d 8 (2d Cir. 1984) (holding that inmates who work for private employers outside of the prison may be considered employees when all the circumstances indicate that the relationship is comparable to the typical employer-employee relationship).
[8] See Captive Labor: Exploitation of Incarcerated Workers, ACLU & U Chi. L. Sch. Glob. Hum. Rights Clinic (2022), https://perma.cc/MT2W-TMDZ [hereinafter Captive Labor].
[9] 18 U.S.C. § 4126(c) (stating that Federal Prisons Industries, which oversees federal incarcerated workers, is not required to pay workers).
[10] See Francine Uenuma, The History of California’s Inmate Firefighter Program, Smithsonian Magazine (Sept. 1, 2022), https://perma.cc/NN2Z-BCAR.
[11] See Kelly Parker, Employment after Prison: The Importance of Supporting Workers Who are Seeking Work after Incarceration, NCDA.org (Dec. 1, 2022), https://perma.cc/X7JP-KG8M.
[12] See Justin Stabley, People Leaving Prison Have a Hard Time Getting Jobs, The Pandemic Has Made Things Worse, PBS.org (Mar. 31, 2021), https://www.pbs.org/newshour/economy/people-leaving-prison-have-a-hard-time-getting-jobs-the-pandemic-has-made-things-worse; contra LJ Flanders, Going to Prison Changed My Life for the Better, Metro (Mar. 17, 2022), https://perma.cc/4QX3-EJ5N (sharing an account of how the author received certification for personal training while incarcerated and got a job at a gym after his release).
[13] See New Data on Formerly Incarcerated People’s Employment Reveal Labor Market Injustices, , Prison Pol’y Initiative (Feb. 8, 2022), https://perma.cc/8H32-VVYK (“In the first few months [post-release], formerly incarcerated people were earning just 53% of the median US worker’s wage.”).
[14] See Thais Alves & Emily Spears, The Period Project: The Fight for Menstrual Equity in Prisons, Ms. Magazine (Feb. 24, 2022), https://perma.cc/ZM5X-9PCW.
[15] See Consumers Harmed by Prison Financial Services Company JPay to Receive Compensation, Consumer Fin. Prot. Bureau (Dec. 15, 2022) https://perma.cc/Z22L-BZ7A.
[16] 29 U.S.C.A. § 203(e)(1).
[17] 29 U.S.C.A. § 203(e)(3)-(4).
[18] 29 U.S.C.A. § 203(e)(2).
[19] See Vanskike v. Peters, 974 F.2d 806, 809 (7th Cir. 1992) (holding that incarcerated workers who are employed by the Department of Corrections – not an outside private employer – are not considered employees under the FLSA because “inmate labor belongs to the institution” and the prison exercises “too much control to classify the relationship as one of employment”).
[20] See James K. Haslam, Prison Labor Under State Direction: Do Inmates Have the Right to Flsa Coverage and Minimum Wage?, 1994 B.Y.U. L. Rev. 369, 372 (1994) (quoting Senate Comm. on Labor and Pub. Welfare, Fair Labor Standards Amendments of 1966, S.Rep. No. 1487, 89th Cong., 2d Sess. 1 (1966)).
[21] See Expanding Economic Opportunity for Formerly Incarcerated Persons, The White House (May 9, 2022), https://perma.cc/K93A-FL35.
[22] See Hill v. Lappin, 561 F.Supp. 3d 481 (M.D. Pa. 2021) (holding that the incarcerated plaintiff did not qualify for a Bivens remedy because his claims of excessive force and conditions-of-confinement were within the prison’s authority); see also Hannah C. Merrill, Working on the Other Side of the Fence: Relief for Incarcerated Individuals After Employment Discrimination, 28 Wm. & Mary J. Race, Gender & Soc. Just. 199 (2021) (asserting that the lack of statutory workplace protections makes the prison work environment conducive to the abuse of power and discrimination experienced by some incarcerated people).
[23] See Watson v. Graves, 909 F. 2d 1549, 1555 (5th Cir. 1990) (holding that the incarcerated workers, who were employed outside the prison through a work-release program, were protected under the FLSA since “[the incarcerated workers’ situation is fraught with the very problems that FLSA was drafted to prevent – grossly unfair competition among employers and employees alike.”)
[24] See National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences (2014); see also James Kilgore, Understanding Mass Incarceration: A People’s Guide to the Key Civil Rights Struggle of Our Time (2015).
[25] See Vanskike, 974 F.2d at 810; see also Hale v. Arizona, 993 F.2d 1387 (9th Cir. 1993).
[26] U.S. Const. amend. VIII, § 2.
[27] See Private Prison Information Act, S.1983, 118th Cong. (2023).
[28] See Emilee Klein, Private Prisons Hide In Politicians’ Stock Holdings, FinePrint Data (July 19, 2021), https://perma.cc/L5VJ-75WV.
[29] See The Prison Industry in the United States: Big Business?, Komorn Law, https://perma.cc/6RAB-TC2P (last visited Mar. 12, 2024).
[30] See Ronnie Steinberg, Wages and Hours: Labor and Reform in Twentieth-Century America 461 (1982).
[31] See Captive Labor, supra note 6.
[32] See supra Part III.
[33] See supra Part II-III
[34] See supra Part II.
About the Author:
Katie Miller is a first-year J.D. candidate at Penn State Law. Born and raised in Kingston, Jamaica, Katie graduated magna cum laude from Rhodes College in Memphis, Tennessee, earning her B.A. in International Studies and Political Science and a minor in Spanish. While in Memphis, Katie served as the Student Director of Engagement for the Rhodes Liberal Arts in Prison Program, an experience that has fostered her commitment to prison reform and civil rights law and has inspired this article.
Suggested Citation: Katie Miller, Why Incarcerated Workers Should be Protected by the Fair Labor Standards Act, Penn St. L. Rev.: F. Blog (Apr. 22, 2024), https://www.pennstatelawreview.org/the-forum/why-incarcerated-workers-should-be-protected-by-the-fair-labor-standards-act/.