Unregulated Labor: The Issue with Prison Work Programs
The Fair Labor Standards Act (the FLSA) was passed in 1938 as part of a larger effort to regulate and maintain fair working standards for employees. Most notable among its policies was the establishment of a federal minimum wage guaranteed to “any individual employed by an employer”. Although the act, in its modern form, contains an exhaustive list of exemptions and clarifications on who qualifies for this federal minimum wage, prison inmates are never expressly mentioned. This vagueness has caused considerable debate within circuit and state courts as to whether the FLSA should be applied to prison work programs, with most courts failing to grant inmate laborers the same rights as other American employees.
The question of whether the FLSA should be applied to inmates generally boils down to two questions: Are prison inmates “employees”? And did Congress intend for inmates to be covered under the act? The vast majority of American courts do not grant prison inmates coverage, specifically under the premise that inmates can not qualify under the term “employee”. Courts come to this conclusion by considering factors such as the right of the employer to hire and fire, the supervision and control of work, and the maintenance of employer records. In the 1996 case Danneskjold v. Hausrath, the court concluded that inmate laborers did not take part in a relationship of employment because they were taken out of the national economy, their labor was designed to train and rehabilitate them, the prison provided the inmates living standards, and their labor does not compete with private employers. Other popular non-coverage arguments focus on the intention of congress, arguing that because congress passed the FLSA to improve employee living conditions, and inmate living conditions were controlled by their prisons anyway, congress could not have intended to cover inmate labor with the act.
The legal validity of these arguments should be of less concern to the American consumer than the potential ethical concerns with lack of regulation for inmate labor. The United States has the sixth largest incarceration rate of any country, rivaled only by governments with totalitarian tendencies like Cuba, Rwanda, and El Salvador. As of 2022, an estimated 800,000 inmates were participating in prison work programs, with companies like McDonalds, Walmart, and Costco benefiting from prison labor in their supply chains.
The lack of regulation is especially worrisome considering the racialized history of incarceration in the United States. When slavery was abolished, the need for a cheap labor source incentivized the creation of Black Codes, a series of arbitrary laws targeted at black communities. The twentieth century saw the now illegal chain gangs, where predominantly black male inmates would be chained together and forced to do manual labor under inhuman conditions. The incarcerated labor model reached its modern form with the mass incarcerations of the “war on drugs”, a thinly veiled attempt to suppress black communities and increase the prison population. It was under these conditions that modern prison work programs developed.
Although prison populations have finally begun to lower, and corporations are attempting to distance themselves, at least publicly, from unregulated prison labor, change in the American judicial system is excruciatingly slow. Attorney General Merick Garland has begun a series of reforms aimed to subtly counteract policies from the “war on drugs”. However, both presidential nominee Donal Trump, and his last chosen Attorney General Jeff Sessions, are staunchly anti-reform. In the context of the slow and reversible changes to the prison industrial complex, clarity regarding inmate labor regulation is necessary. Whether by an amendment to the FLSA in congress, or precedent-setting decision in the Supreme Court, a standard must be established.
Sources:
https://apnews.com/article/prison-to-plate-investigation-takeaways-5debda3b0222c5c7de8b8a485084f206
https://www.dol.gov/agencies/whd/flsa
file:///C:/Users/fridl/Downloads/26VaJSocPolyL65.pdf
https://www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration
https://www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_taxonomy_tid=All