Saturday, November 23, 2019

Principled Article by Chapman University Law Professor Lan Cao Argues for FLSA Protections for Inmates Working in the Prison Labor Industry

            In a new law review article, the author, a law professor, argues that prisoners, when undertaking most aspects of labor, should be considered employees, covered by the Fair Labor Standards Act, and receive at least minimum wage.  Limited authority surrounding this issue exists from the federal courts, but the overwhelming rule is that prisoners generally enjoy no such protections.  See Lan Cao, Made in the USA: Race, Trade, and Prison Labor, 43 N.Y.U. Review of Law & Social Change 1 (2019).

            The author’s advocacy follows her long investigation into what she says is a trend of private companies contracting with federal, state, and private prisons to employ prisoners as labor in the provision of services and the manufacture of goods.  She shows that use of prisoners by for-profit enterprises has long been a matter of tension, particularly where such work, which is often at nominal or no wages, creates an advantage over enterprises that employ free labor at prevailing (or even minimum) wages.  In the last few decades, however, with the rising prison population, such employment has also risen, with private companies contracting with federal and state agencies for inmates to undertake such things as manufacturing apparel and answering calls at call-in centers. Cao cites several muckraking stories on this issue, referencing articles in Mother Jones, The Christian Science Monitor, and an investigation by Pro Publica.  

            Cao argues that the idea that work by prisoners is solely “penological” and rehabilitative is a fiction.  She asserts, on this point, that no research supports the proposition that inmates who work actually experience a lower recidivism rate.  A better policy in this area, she says, would be for inmates to receive wages and develop savings, which in turn would facilitate an easier return to society after release from confinement.

            Cao notes that some laws provide that prison work is not to be undertaken in a manner that would create unfair competition.  However, she states that such rules are often flouted, and that the federal government has outsourced policing of such laws to an industry group.  She in effect asserts that the chickens are guarding the hen-house.  The author throughout depicts the prison labor industry in such negative terms. Her most acid commentary addresses the industry’s cynical attempt to depict American prisoner labor as part of the “reshoring” of manufacturing and as a part of the “Made in the USA” movement.

            Cao does not discuss at length the role of workers’ compensation, but if inmates are considered neither employees of the prison or of the contracting for-profit company for which they labor, they are not going to have FLSA, unemployment, or workers’ compensation protections.  She does quotes one entrepreneur as indicating that he prefers prison work for his company because he avoids the burdens of such benefit costs. (Ironically, some employers also like inmates as workers because their absenteeism is lower.)  She also identifies California as a state where an inmate can receive workers’ compensation, but only upon release from confinement.  Notably, though not mentioned by Cao, the federal government, at 18 U.S.C. § 4126, maintains the Inmate Accident Compensation System, characterized as “the equivalent of a prison inmate’s workers’ compensation program,” which is “the exclusive means of recovery against the Government for a federal prisoner’s work-related injuries, and bars suits for damages for such injuries” under the Federal Tort Claims Act.

            In Pennsylvania (my state), WCJ and Board decisions exist where prisoner attempts at securing workers’ compensation have been rejected. The leading case is by Judge Bruce Doman (Allentown), who rejected the proposition that a prisoner could be conceived of as providing services to another for a valuable consideration. See Paar v. State Correctional Institute (May 28, 1993), filed May 28, 1993 (Doman, WCJ) (“‘Work’ in the claimant’s prison environment is a rehabilitation tool for the claimant’s benefit, rather than a service for the employer. Volunteering for work in a prison cannot be equated with voluntary acceptance of employment for a free citizen, because the inmate’s alternatives are limited…. The Act was first passed in 1915. In the 78 years since, no case has reported an award of Workmen’s Compensation to an inmate and for good reason. A duly sentenced inmate cannot be considered to be an employee of the institution that confines him. Employment and imprisonment may share some characteristics, but they are plainly not the same.”).    

            Professor Cao, of course, knows all about this type of reasoning but asserts that such analysis should not be valid when taking into account the for-profit motives of the prison labor industry.  

            In any event, if limited, or absent, state workers’ compensation remedies exist, what of tort law?  One scholar has argued that the Eighth Amendment, which proscribes “cruel and unusual punishments,” should be applied to prisoners injured while laboring at their jobs in prison industries. She argues, specifically, that such prisoners should be deemed to have claims based on this proviso when they suffer their injuries on machinery that prison officials know is defective, malfunctioning, and dangerous. In addition to her constitutional analysis, she summarizes briefly the various state workers’ compensation laws as they address the compensability of prisoner injuries. The variety of approaches is indeed quite remarkable. She finds them too scattered and ineffective to cause prison officials to be leveraged to safe workplace practices. In her view, only by way of threat of a viable constitutional claim can this purpose be fulfilled. Dougherty, The Cruel and Unusual Irony of Prisoner Work Related Injuries in the United States, 10 University of Pennsylvania Journal of Business & Employment Law 483 (Winter 2008).

            In crafting her legal argument about the FLSA, Cao sets forth one admonition at the outset: any right under the law must be based on that law and not under constitutional precepts. In this regard, it is sometimes forgotten that the Thirteenth Amendment does not proscribe slavery as to convicted prisoners. It states, “[n]either slavery nor involuntary servitude, except as punishment for crime whereof the party has been duly convicted, shall exist in the United States, or any place subject to their jurisdiction.”

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