Civil Rights Attys Tell 4th Circ. Prisoners Owed Min. Wage

By Caleb Drickey | September 27, 2023, 8:42 PM EDT ·

A group of civil rights, anti-poverty and employment law groups urged the Fourth Circuit to revive claims that Baltimore County is obliged to pay minimum wages for work that county jail inmates perform at a recycling plant, arguing the work is profit-driven rather than rehabilitative.

In an amicus brief presented to the court Wednesday, a coalition led by the Public Justice Center argued that inmates who work at Baltimore County's Materials Recycling Facility for $20 per day are akin to regular employees with rights to a minimum hourly rate.

Like regular employees, the Public Justice Center said, the inmates voluntarily worked for a profit-driven, rather than rehabilitation-focused, enterprise and had living expenses they needed wages to cover.

"Plaintiffs-appellants were not sentenced to work at the [recycling center] or perform any labor at all," the Public Justice Center noted. "Their work was at least as 'voluntary' as that of any individual who is entitled to [Fair Labor Standards Act] protections — notwithstanding that they, like all whom the act aims to protect, may have limited bargaining power in the labor market."

Under the Fourth Circuit's 1993 decision in Harker v. State Use Industries , prison laborers are not considered employees with rights to minimum or overtime wages if their work's purpose is rehabilitative and if the payment of minimum wages would not advance the goals of the FLSA.

According to the Public Justice Center, Baltimore County's Material Recycling Facility work program, under which county jail inmates are transported to and put to work at a county-operated recycling plant, failed to pass muster under any of those factors.

The work was not rehabilitative in purpose, the organization argued, because the county had not provided any evidence that workers gained job experience that increased the chances of post-release employment and reduced the chance of recidivism.

Rather, the Public Justice Center argued that the record indicated that the county had a strong economic motive to extract labor from inmates.

"The district court found that the 'county operated the facility as a business … [had an] economic motive' for using '$5 a day labor' and 'hoped the recycling center could turn profit,'" the center said. "The county had a pecuniary interest in using incarcerated workers."

The center also argued that providing inmates with minimum wages enhanced the FLSA's primary purposes of providing workers with the ability to maintain minimum living standards and to prevent unfair competition.

Contrary to what the group called the "widespread misconception" that prisoners receive the minimum requirements of life on the public dime, the Public Justice Center noted that inmates often must pay out of pocket for food, medical care and phone service.

Forcing public entities to pay minimum wages for prison work programs, the center also said, would ensure that those entities cannot improperly undercut the private firms they compete with. Allowing entities to pay subminimum wages for some of their workers, the group said, limits the ability of firms with higher payroll costs to provide the same service at the same price.

Lucy Zhou, counsel for the Public Justice Center, said in a statement Wednesday that inmates are not categorically exempt from FLSA protections.

"There is no exemption under the FLSA for people who are incarcerated, even though the statute exempts certain other kinds of workers," Zhou said. "These plaintiffs were working outside of the detention center, alongside nonincarcerated workers who were doing the same job and being paid minimum wage, for a county agency that was trying to turn a bigger profit in a competitive market."

Representatives of Baltimore County did not immediately respond to a request for comment.

The Public Justice Center, Legal Aid Justice Center, Mountain State Justice and National Employment Lawyers Association are represented by Monisha Cherayil and Lucy Zhou of the Public Justice Center.

The inmates are represented by Howard Hoffman and Jordan S. Liew of Hoffman Employment Law LLC.

Baltimore County is represented by Jeffrey Johnson and Kraig Long of Nelson Mullins Riley & Scarborough LLP.

The case is Scott et al. v. Baltimore County, case number 23-1731, in the U.S. Appeals Court for the Fourth Circuit.

--Editing by Leah Bennett.

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