Baltimore County Tells 4th Circ. Inmates Aren't Employees

By Irene Spezzamonte | November 21, 2023, 3:35 PM EST ·

Inmates who performed work at a recycling plant in a county jail are not considered employees for the purposes of federal law because their work was rehabilitative in nature, Baltimore County told the Fourth Circuit, asking the court to keep its district court win.

In a brief filed Monday, the county told the appellate panel that the Maryland district court's decision granting it summary judgment should stay in place, arguing that the inmates' work at the materials recovery facility, or MRF, had a rehabilitative purpose, making them ineligible to earn minimum wage under the Fair Labor Standards Act.

"Plaintiffs ignore that the MRF's focus on revenue as a facility designed to sell recyclables is separate from whether the county intended that the work performed by plaintiffs at the MRF would assist with rehabilitation," the county said.

A group of inmates, who earned $20 a day, urged the Fourth Circuit in their September brief to flip the lower court's decision finding they were not employees under the FLSA, saying that "the purpose of the work was neither rehabilitative nor served any penological purpose."

On the contrary, "the correctional authorities, under pressure from county administrators, abused their custodial authority to make short-term incarcerees available as a cheap source of labor to a sister agency of the county, the Department of Public Works," the inmates said.

A group of civil rights, anti-poverty and employment law groups backed the inmates in September.

The county said Monday that the district court correctly relied on the Fourth Circuit's 1993 decision in Harker v. State Use Industries when it ruled in its favor, saying that the inmates "incredibly fault" the lower court for doing so.

The Fourth Circuit ruled in Harker that inmate laborers are not entitled to minimum wage or overtime pay under the FLSA if their work has a rehabilitative purpose and if receiving minimum wage wouldn't advance the FLSA's goals.

The county said the inmates are trying to limit the applicability of Harker to those within prison walls, but "ignore this court's recent emphasis that the custodial context is itself inconsistent with the 'traditional employment paradigm' covered by the FLSA, without any regard for the physical location of the work."

That recent reasoning the county pointed to is the Fourth Circuit's 2021 decision in Ndambi et al. v. CoreCivic Inc.  In that decision, a panel found that people detained at a U.S. Immigration and Customs Enforcement facility that Core Civic operated were not employees under the FLSA, in part because they were not like free workers able to quit their jobs and find other ones at will.

The county also said at the summary judgment stage it "undisputedly demonstrated that the overarching purpose of all work details administered by the county's [Department of Corrections] — including the MRF detail — was to prepare inmates for reintegration upon their release."

The inmates worked at the materials recovery facility while remaining in custody of the correctional officers and were unable to negotiate over pay, work schedule or promotions like "a traditional" employer-employee relationship would include, the county said.

The county further argued that considering the inmates employees under federal law "would not vindicate the legislative aims of the FLSA of preventing 'unfair competition'" because the county avoided competition with private recyclers and devoted all revenue to public good, "including the costs of plaintiffs' own incarceration."

Howard Hoffman of Hoffman Employment Law LLC, who is representing the inmates, told Law360 on Tuesday that the county didn't say "anything new [or] interesting" in the brief, adding that "a jury could quite easily conclude" it was trying to compete with other, private operators.

"Baltimore County is the only jurisdiction that we know, in this circuit, who engaged in this practice. But left unchecked, the county's position would create a race to the bottom among nearly every jurisdiction to staff their recycling facilities with inmates," Hoffman said. "This encourages lengthier sentences for minor crimes for first offenders and the deliberate diversion of inmates from private work release to the county's recycling center — representing the perfect conflict of interest which is on display in this case."

Baltimore County declined to comment Tuesday.

The inmates are represented by Howard Hoffman and Jordan Song En 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 Michael Scott et al. v. Baltimore County, Maryland, case number 23-1731, in the U.S. Court of Appeals for the Fourth Circuit.

--Additional reporting by Caleb Drickey. Editing by Neil Cohen.

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