A Jailhouse Lawyer s Manual

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1 A Jailhouse Lawyer s Manual Chapter 37: Labor Rights Columbia Human Rights Law Review 7th Edition 2007

2 LEGAL DISCLAIMER A Jailhouse Lawyer s Manual is written and updated by members of the Columbia Human Rights Law Review. The law prohibits us from providing any legal advice to prisoners. This information is not intended as legal advice or representation nor should you consider or rely upon it as such. Neither the JLM nor any information contained herein is intended to or shall constitute a contract between the JLM and any reader, and the JLM does not guarantee the accuracy of the information contained herein. Additionally, your use of the JLM should not be construed as creating an attorneyclient relationship with the JLM staff or anyone at Columbia Law School. Finally, while we have attempted to provide information that is up-to-date and useful, because the law changes frequently, we cannot guarantee that all information is current.

3 CHAPTER 37 LABOR RIGHTS A. Introduction This Chapter is a survey of the American law of prison labor. While the benefits of prison labor are widely acknowledged, legislatures and courts have been reluctant to write and interpret the law in a manner that would confer on prisoners the right to similar working conditions as those enjoyed by the general public. This Chapter explores the important distinctions between prison and civilian workers that underlie the differences in rights, responsibilities, and protections afforded to each. In an attempt to provide you with an overview of the claims and strategies you may employ in an effort to exercise the full scope of your rights, the chapter looks at the status of relevant constitutional, state, and federal law and attempts to identify trends and gaps therein. Specifically, Part B the Chapter examines your rights to work and to refuse to work. Part C discusses your right to earn wages and other forms of compensation. Part D discusses your right to recover for injuries sustained while working. Part E discusses your right to participate in and benefit from work release programs. Finally, Part F discusses your right to form labor unions. B. The Rights to Work and to Refuse to Work You have no constitutional right to choose whether or not to work while in prison. The Thirteenth Amendment, which protects against slavery and involuntary servitude, provides an exception for punishment for crime whereof the party shall have been duly convicted. 1 Courts have interpreted crime as crime in its generic sense, 2 including felonies, misdemeanors, and all other violations of the penal law. 3 Thus, prison officials have considerable discretion in determining both whether to assign you a job and the particular job to which you are assigned. 1. The Right to Refuse to Work You have no general right to refuse to work 4 and may be disciplined for attempting to do so. 5 The Constitution has been held not to prohibit difficult, 1. U.S. Const. Amend. XIII. 2. City of Ft. Lauderdale v. King, 222 So.2d 6, 8 (Fla. 1969) (municipal offenses are properly considered crimes with respect to the applicability of constitutional provisions, such as the Thirteenth Amendment). 3. Stone v. City of Paducah, 120 Ky. 322, , 86 S.W. 531, 534 (Ky. 1905) (holding that the word crime encompasses many levels of offense, including misdemeanors specifically and penal code violations generally). 4. Cooper v. Morin, 91 Misc. 2d 302, 340, 398 N.Y.S.2d 36, 68 (Sup. Ct., Monroe Co., 1977) (unconvicted prisoners are constitutionally prohibited from working during incarceration, whereas convicted prisoners have no protected right to refuse to work while incarcerated). 5. Mikeska v. Collins, 900 F.2d 833, 837 (5th Cir. 1990) (a prisoner s refusal to work according to prison work assignment is sanctionable); Glick v. Lockhart, 759 F.2d 675, 676 (8th Cir. 1985) (holding that a prisoner may be punished for his refusal to work while incarcerated, even if he

4 Ch. 37 A JAILHOUSE LAWYER S MANUAL 2 strenuous work 6 or jobs with long hours, 7 and courts have consistently held that requiring convicted prisoners to work against their will is constitutional. 8 You may not, however, be compelled to do work that is unsafe, 9 beyond your physical capabilities 10 or otherwise medically inappropriate, 11 or against your religion. 12 argues that his psychological state renders him a threat to himself and the people working around him); Mosby v. Mabry, 697 F.2d 213, 215 (8th Cir. 1982) (holding that a prisoner s refusal to work is not a federally protected right, therefore disciplinary charges can be properly filed against a prisoner who refused to work). 6. Franklin v. Lockhart, 890 F.2d 96, 97 (8th Cir. 1989) (finding that prisoner s argument that his job assignment was a per se violation of the Eighth Amendment was frivolous); Jackson v. O Leary, 689 F. Supp 846, (N.D. Ill. 1988) (prisoners may be compelled to perform work that is more difficult than they desire, provided that the work not cause the prisoner undue pain, endanger his life, or exceed his physical capacity). 7. Howard v. King, 719 F.2d 787, 788 (5th Cir. 1983) (fifty-six hour work week not per se cruel and unusual). 8. See, e.g., Wendt v. Lynaugh, 841 F.2d 619, (5th Cir. 1988) (duly convicted prisoners are outside the protections of the Thirteenth Amendment, and various courts upholding of forced labor for a public purpose belie any claim that forcing prisoners to work is cruel and unusual punishment under the Eighth Amendment); Mosby v. Mabry, 697 F.2d 213, 215 (8th Cir. 1982) ( compelling prison inmates to work does not contravene the Thirteenth Amendment ); Draper v. Rhay, 315 F.2d 193, 197 (9th Cir. 1963) (prison rules may require prisoners to work without violating the Thirteenth Amendment, since the term involuntary servitude was intended to cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results. (quoting Butler v. Perry, 240 U.S. 328, 332, 36 S.Ct. 258, 259, 60 L.Ed. 672 (1916)); Patterson v. Oberhauser, 331 F. Supp. 220 (D.C. Cal. 1971) (holding that a requirement by prison authorities that a convict perform physical labor is not, in itself, cruel and unusual punishment). See also Plaisance v. Phelps, 845 F.2d 107, 108 (5th Cir. 1988) (the fact that a prisoner is appealing his or her conviction does not entail the assumption that the conviction was not duly obtained, a requirement for Thirteenth Amendment protection). 9. Prison officials must provide a reasonably safe working environment for prisoners. However, in order to prove that unsafe conditions violate the Eighth Amendment, you must show that prison officials were deliberately indifferent to your safety. See Helling v. McKinney, 509 U.S. 25, 30, 113 S. Ct. 2475, 2479, 125 L. Ed. 2d 22, 29 (1993) (deliberate indifference is demonstrable through an evaluation of the prison officials attitude toward safety and conduct showing that the officials were ignoring the potentially unsafe condition); Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985) ( Persons involuntarily confined by the state have a constitutional right to safe conditions of confinement. ); Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980) ( a state must provide an inmate with shelter which does not cause his degeneration or threaten his mental and physical well being (quoting Battle v. Anderson, 564 F.2d 388, 403)). 10. See, e.g., Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) ( Compelling prisoners to work beyond their strength is a violation of the eighth amendment ); Ray v. Mabry, 556 F.2d 881, 882 (8th Cir. 1977) ( For prison officials knowingly to compel convicts to perform physical labor which is beyond their strength, or which constitutes a danger to their lives or health, or which is unduly painful constitutes an infliction of cruel and unusual punishment prohibited by the Eighth Amendment to the Constitution of the United States as included in the 14th Amendment (quoting Tally v. Stephens, 247 F.Supp. 683, 687 (1965)). 11. The Supreme Court has ruled that the Eighth Amendment prohibits deliberate indifference to serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 260 (1976). Therefore, in order to prevail on an Eighth Amendment claim on this basis, some courts have held that it is necessary to prove that the work was assigned by someone who knew of the medical condition and of the chance that the condition could be worsened by performing the assigned work, or that the prisoner was ordered to continue performing the work once

5 3 LABOR RIGHTS Ch. 37 Furthermore, it is unconstitutional for a prisoner to be assigned to a particular job on a discriminatory, arbitrary, or capricious basis The Right to Work Most courts have held that prisoners have no constitutional right to work, 14 although a few courts have emphasized that the availability of prison labor is an important consideration in determining whether poor prison conditions would otherwise constitute violations of the Eighth Amendment prohibitions on cruel and unusual punishment. 15 However, courts have not found that the failure of a prison to provide work constitutes an Eighth Amendment violation in and of itself. In order to show that work is a necessary remedy for cruel and unusual conditions in those few jurisdictions which have found such a duty, you must be able to show that general conditions (including, for example, the status of sanitation, medical, educational, living, and security services) are so lacking that confinement therein is shocking to the conscience of reasonably civilized people. 16 Courts have such knowledge was obtained. See, e.g., Mikeska v. Collins, 900 F.2d 833, 837 (5th Cir. 1990) (no Eighth Amendment violation where there was no proof that prison officials knowingly gave a prisoner work that would aggravate his condition and where the prisoner received adequate medical care). Courts will generally not overrule the judgment of prison medical personnel. See, e.g., Shepard v. Stidham, 502 F.Supp. 1275, 1281 (D.C. Ala. 1980) (no Eighth Amendment violation when the court found that prisoner was treated with reasonable care by federal camp employees who had relied on the judgment of a physician whose medical care was not challenged). 12. See Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963). See also 28 C.F.R (b) (2005) (wardens may relieve prisoners from programs or assignments that have time conflicts with religious activities). 13. Bentley v. Beck, 625 F.2d 70, (5th Cir. 1980) ( Inmates have the constitutional right to be free from racial discrimination ); Sostre v. McGinnis, 442 F.2d 178, (2d Cir. 1971) (as citizens protected by the Due Process and Equal Protection clauses of the fourteenth amendment, prisoners must be free from arbitrary and capricious treatment by prison officials). See also Baker v. McNeil Island Corr. Ctr., 859 F.2d 124 (9th Cir. 1988) (holding that Title VII of the Civil Rights Act of 1964 covers prisoners). But see Williams v. Meese, 926 F.2d 994 (10th Cir. 1991) (Title VII does not apply to prisoners, and prisoners do not have a right to particular jobs or assignments, yet as a matter of constitutional law prison officials may not discriminate against a prisoner on the basis of race, age, or disability in assigning jobs to prisoners). For assistance with the filing of civil rights suits under 28 U.S.C. 1983, see Chapter Garza v. Miller, 688 F.2d 480, 485 (7th Cir. 1982), cert. denied, 459 U.S (1983) (federal statute does not create a protected liberty interest in prison employment, but leaves the extent to which such employment is provided to the discretion of the Federal Prison Industries Board); Fuller v. Lane, 686 F. Supp. 686 (C.D. Ill 1988) (statutes and departmental rules governing work participation, including consideration of prisoners criminal history, are constitutionally valid). 15. See, e.g., James v. Wallace, 406 F. Supp. 318 (M.D. Ala. 1976) (noting that while there prisoner s have no constitutional right to work, [t]he absence of an affirmative program of training and rehabilitation may have constitutional significance where in the absence of such a program conditions and practices exist which actually militate against reform and rehabilitation ) (quoting Holt v. Sarver, 309 F. Supp. 362, 369 (E.D. Ark. 1970); Barnes v. Government of Virgin Islands, 415 F. Supp (D.V.I. 1976) (finding that educational, vocational, and work opportunities must be made available on an equal basis to all inmates and that each prisoner shall be assigned a meaningful job based on his abilities and interests, and according to institutional needs ). 16. James v. Wallace, 406 F. Supp 318, 329 (M.D. Ala. 1976) (quoting Holt v. Sarver, 309 F. Supp. 362, (E.D. Ark. 1970), aff d, 442 F.2d 304 (8th Cir. 1971). See also Garza v. Miller, 688

6 Ch. 37 A JAILHOUSE LAWYER S MANUAL 4 justified mandating the availability of work by focusing on the need for money in prison to purchase necessary goods and services (and the likelihood, in the absence of legitimate work opportunities and sufficient prisoner supervision, that dangerous underground markets will develop), 17 the need for rehabilitative prison programs, 18 and the tendency for idleness, apathy, boredom, and frustration, products of a lack of work opportunities, to lead to violence, a situation which implicates a prison s constitutional duty, under the Eighth and Fourteenth Amendments, to provide prisoners with reasonable protection from a constant threat of violence. 19 While there is no federal constitutional right to work, state law or federal statute can create such a right. Courts in New Hampshire, West Virginia, Colorado, and Alaska have found that state statues, constitutional and case law which mandate that prisoners be given opportunities for rehabilitation or condemning idleness as a condition that cultivates prisoner debilitation also create an obligation to provide state prisoners with employment. 20 Other states, such as Pennsylvania and Indiana, have acknowledged statutory rights to prison employment with little discussion of their rationale. 21 Most states, however, including California and New York, do not guarantee prisoners a right to work, and instead delegate control over the terms and conditions of prison employment to state prison authorities. 22 Taking a position similar to that of the Seventh Circuit in Garza v. Miller 23 (described below), a New Jersey federal court ruled that despite a state statute stating that inmates of all correctional institutions shall be employed, 24 New Jersey prisoners have no protected liberty interest in F.2d 480, 486 (7th Cir. 1982) ( there is no constitutional mandate to provide educational, rehabilitative, or vocational programs, in the absence of conditions that rise to a violation of the Eighth Amendment ). 17. James v. Wallace, 406 F. Supp. 318, 327 (M.D. Ala. 1976). 18. See, e.g., James v. Wallace, 406 F. Supp. 318, 330 (M.D. Ala. 1976); Barnes v. Government of Virgin Islands, 415 F. Supp. 1218, 1226 (D.V.I. 1976) (finding that, while courts have not found that prisoners have a constitutional right to be rehabilitated, the absence of rehabilitative programs has constitutional significance, citing James for the proposition that it may be cruel and unusual punishment to confine a person under conditions which increase the likelihood of future incarceration). 19. James v. Wallace, 406 F. Supp. 318, 329 (M.D. Ala. 1976). 20. Laaman v. Helgemoe, 437 F. Supp. 269 (D.N.H. 1977) (holding that prisoners have the right to avoid idleness); Ramos v. Lamm, 485 F. Supp. 122 (D. Colo. 1979) (ruling that prisoners have the right to avoid idleness); Hays v. State, 830 P.2d 783 (Alaska 1992) (citing Alaska statute for prisoner s right to avoid idleness); Cooper v. Gwinn, 171 W.Va. 245 (W.Va. 1981) (citing West Virginia statute for prisoner s right to avoid idleness). 21. See, e.g., French v. Owens, 538 F. Supp. 910 (S.D. Ind. 1982) (citing Indiana statute for prisoner s right to avoid idleness); Smith v. Owens, 582 A.2d 85 (Pa. Commw. Ct. 1990) (noting plaintiff s argument that Pennsylvania statute mandates that corrections officers employ prisoners). 22. See, e.g., Cal. Pen. Code 2700; Lee v. Coughlin, 530 N.Y.S.2d 884 (N.Y. App. Div. 1988) (interpreting N.Y. CLS Correct. 171). 23. Garza v. Miller, 688 F.2d 480 (7th Cir. 1982) (stating that prisoners have no protected liberty interest in employment). 24. N.J.S.A. 30:4 92.

7 5 LABOR RIGHTS Ch. 37 prison employment and prison authorities have broad discretion to provide or not provide employment opportunities. 25 Federal prison authorities are directed by statute to provide employment for the greatest number of those inmates in the United States penal and correctional institutions who are eligible to work as is reasonably possible. 26 Moreover, the United States Department of Justice, in an effort to provide guidelines for the exercise of [correctional authorities ] discretion and as practical goals that can significantly improve conditions and practices in correctional facilities, 27 suggested that federal prisons initiate work programs that ensure full-time employment for all eligible prisoners so as to prevent idleness. 28 Nevertheless, in Garza, 29 the Seventh Circuit held that federal law does not guarantee jobs for all able prisoners. Referring to the legislative history of 18 U.S.C. 4122, which also gives federal prison authorities the discretion to govern prison industrial operations, the Garza Court held that the Federal Prison Industries Board is free to determine the extent to which prison employment should be provided The Right to a Particular Job Generally, you have no right to be assigned to a particular job or type of employment. Courts have extended Garza s holding that federal statutes do not guarantee prisoners employment under the Due Process Clause to rule that prisoners have no constitutionally protected liberty or property interest in their particular job assignments. 31 Similarly, you have no unqualified right to maintain a job to which you have been assigned. 32 Courts defer to the prison officials authority 25. Rowe v. Fauver, 533 F. Supp (D.N.J. 1982) (holding that prison has discretion in providing employment) U.S.C. 4122(b)(1) (2000). 27. U.S. Department of Justice, Federal Standards for Prisons and Jails Preamble (1980). 28. U.S. Department of Justice, Federal Standards for Prisons and Jails (1980). 29. Garza v. Miller, 688 F.2d 480 (7th Cir. 1982). 30. Garza v. Miller, 688 F.2d 480, 486 (7th Cir. 1982). 31. See, e.g., Jamal v. Cuomo, 234 F.3d 1273 (7th Cir. 2000) (ruling that prisoners have no property interest in employment); James v. Quinlan, 866 F.2d 627 (3rd Cir. 1989) (holding that prisoners due process rights are not violated by a financial responsibility program that withheld a percentage of prisoners income because prisoners do not have property rights in their prison job assignments); Flittie v. Solem, 827 F.2d 276 (8th Cir. 1987) (affirming the order that dismissed prisoner's suit because he had no constitutional right to retain his law clerk job); Ingram v. Papalia, 804 F.2d 595 (10th Cir. 1986) (affirming a ruling that there is no constitutionally created property or liberty interest in prison employment). 32. See, e.g., Wallace v. Robinson, 940 F.2d 243 (7th Cir. 1991) (holding that prisoner lacked a liberty or property interest in a particular job because Illinois had not created a legitimate claim of entitlement to hold one job rather than another); Flittie v. Solem, 827 F.2d 276 (8th Cir. 1987) (holding that prison regulations did not create a liberty interest in a particular position in the absence of language placing significant substantive restrictions on the prison administrator s decision-making process); Ingram v. Papalia, 804 F.2d 595 (10th Cir.1986) (noting that Colorado statutes did not create a protected property or liberty interest in a particular job, and holding that the prisoner had no protection under the due process clause). See also Gibson v. McEvers, 631 F.2d 95 (7th Cir. 1980) (holding that a prisoner s expectation of keeping a specific job does not amount to a property or liberty interest entitled to protection under the due process clause). But see Ferguson v. Dep t of Corr., 816 P.2d 134 (Alaska 1991) (where a prisoner had an enforceable interest in his participation in a

8 Ch. 37 A JAILHOUSE LAWYER S MANUAL 6 to make decisions concerning the assignment or removal of prisoners to and from particular positions. 33 Therefore, in the absence of an independent constitutional or civil rights violation, you have little chance of prevailing on a claim that an assignment to or removal from a particular job was unlawful, even if your qualifications were ill-suited to the assignment or the decision to remove you was unwise or unfair. Courts will interfere with such an administrative decision only when it constitutes a constitutional violation or retaliation against the exercise of one s constitutional rights. Prison officials violate the Constitution s Equal Protection Clause when they discriminate among prisoners on the basis of age, race, or disability in assigning particular jobs, and courts will interfere with prison administration in the face of such a violation. 34 In order to prove an equal protection claim, you must (i) prove that a state actor (such as a prison official) intentionally discriminated against you 35 and (ii) defeat the claim that the same decision would have been made in the absence of the discriminatory purpose. 36 Prison officials may also not use job assignment or job termination as a means of retaliating against prisoners for actions that are a legitimate exercise of constitutional rights. 37 Courts have split on the question of whether prisoners are employees within the meaning of Title VII of the Civil Rights Act of 1964 and therefore covered by its protection against employment discrimination. The Ninth Circuit relied on an Equal prison industries program because the Alaskan Constitution includes a right to rehabilitation and the program from which the prisoner was excluded was a rehabilitative program). 33. See Wallace v. Robinson, 940 F.2d 243, (7th Cir. 1991) (holding that a prison warden could have transferred a prisoner from his job for no particular reason at all because neither the Constitution nor state law creates a liberty or property interest in a particular job). 34. See, e.g., Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991) (holding that plaintiff prisoner had a claim for deprivation of his right of equal protection because prison officials cannot discriminate on the basis of age, race, or handicap in assigning prison jobs); Bentley v. Beck, 625 F.2d 70 (5th Cir. 1980) (holding that while prison officials must have broad discretion in classifying prisoners and assigning them to jobs, doing so in an overtly racist manner would violate prisoners equal protection right to be free from racial discrimination). 35. Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976) (holding that a purported equal protection violation will not be deemed unconstitutional solely on the basis of racially disproportionate impact, but rather proof of discriminatory racial intent or purpose is necessary). 36. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 271 n.21, 97 S. Ct. 555, 566 n.21, 50 L. Ed. 2d 450, 468 n.21 (1977) (noting that proof that the decision was motivated in part by racially discriminatory purpose would shift the burden to defendant to [establish] that the same decision would have resulted even had the impermissible purpose not been considered ). 37. Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997) (ruling that reassigning a prisoner from his prison job in retaliation for his exercising First Amendment rights would be unconstitutional, since a State may not use its control over discretionary government benefits in a manner that places excessive burdens on certain constitutional rights ); Smith v. Rowe, 761 F.2d 360 (7th Cir. 1985) (affirming decision for prisoner who, after losing her law librarian assignment in retaliation for possessing contraband, refused any other job assignment because she believed her constitutional rights had been violated); Huffman v. Davis, 571 So. 2d 1371 (Fla. Dist. Ct. App. 1st Dist. 1990) (holding that a prison employee acting in retaliation for a prisoner s exercise of a constitutionally protected right raised a claim under 42 U.S.C. 1983).

9 7 LABOR RIGHTS Ch. 37 Employment Opportunity Commission policy stating that Title VII protects prisoners eligible for work release when it ruled in Baker v. McNeil Island 38 that prisoners are covered by the Act. The Baker Court looked at multiple factors to determine whether an employment relationship existed, focusing on the extent to which the employer had the right to control the means and manner of the worker s performance. 39 Conversely, in Williams v. Meese, 40 the Tenth Circuit held that prisoners are covered by neither Title VII nor the Age Discrimination in Employment Act because their relationships with prison officials arise out of their status as prisoners, not employees. Nevertheless, the Baker Court remanded the case for consideration of the prisoner s Fifth Amendment equal protection claim, reiterating the rule from Bentley that although an inmate has no right to a specific job, or to a job at all, prison officials cannot discriminate in choosing whether to assign a job or which particular job to assign Seniority and Benefit Rights You have no constitutional claim to seniority rights or employee benefits as a prison laborer. The courts have left decisions regarding job security, seniority, and benefits to prison officials, 42 based on the presumption that prison policies are rational in the absence of discriminatory, arbitrary, or otherwise constitutionally impermissible treatment. 43 Most courts have also held that if you are transferred from one institution to another, then you have no right to be assigned to a job or to retain a pay level, equal to the seniority gained at the previous facility. 44 Though courts have not yet been receptive to such an argument, Professor Michael Mushlin suggests that: [A] case can be made from a policy perspective for establishing a system of job security in prisons. Unjustified dismissals from attractive work assignments may undercut progress toward rehabilitation and may generate animosity toward prison officials. This, in turn, could lead to 38. Baker v. McNeil Island Corr. Ctr., 859 F.2d 124 (9th Cir. 1988) (holding that where a prisoner recommended for work release is seeking an employment opportunity with an employer, Title VII of the Civil Rights Act of 1964 applies to the jail s interference with the prisoner s employment opportunities with another employer). 39. Baker v. McNeil Island Corr. Ctr., 859 F.2d 124, 128 (9th Cir. 1988). 40. Williams v. Meese, 926 F.2d 994 (10th Cir. 1991). 41. Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991). 42. See Jackson v. Hogan, 446 N.E.2d 692, 388 Mass. 376 (1983) (indicating that prisoners do not have an unqualified right to work and receive attendant benefits, and though state laws or regulations may establish benefit and seniority systems, any rights given to the prisoners may constitutionally be restricted by rules stemming from valid penological concerns such as security and order). 43. Beatham v. Manson, 369 F. Supp. 783 (D. Conn. 1973) (holding that a prisoner is not deprived of due process when as a transferee he received varying rates of compensation compared to other prisoners, unless he can make a prima facie showing that his work assignment or pay rate was decided arbitrarily or capriciously). 44. Manley v. Bronson, 657 F.Supp. 832 (D. Conn. 1987) (holding that a prisoner had no liberty or property interest in a particular job assignment that he lost due to transfer); Salahuddin v. Coughlin, 674 F. Supp (S.D.N.Y. 1987) (ruling that a prisoner had no due process right to notice or hearing before his wages were reduced following transfer); Burkins v. Scully, 108 A.D.2d 743, 485 N.Y.S.2d 89 (2nd Dep t 1985) (holding lawful a reduction in a prisoner s pay upon transfer).

10 Ch. 37 A JAILHOUSE LAWYER S MANUAL 8 increased internal tensions and disruptions. In contrast, job security may result in sharpened work skills, since prisoners would have the opportunity to master their craft. Finally job security may increase productivity, as prisoners could concentrate on their work without having to worry about being fired. 45 C. The Right to Wages You have no constitutional right to be paid for prison work. 46 Courts have consistently stated that prisoners are entitled only to such compensation as prison officials determine, and most states pay only minimal wages to prison workers. 47 At least one court has ruled that a failure to pay promised wages is a contractual violation but is not an actionable civil rights claim under 42 U.S.C Moreover, it is not an equal protection violation either for some states to pay prisoners while other states do not or for a state to pay some prisoners and not others, provided that its decision is based on a valid exercise of official discretion and not on some arbitrary or discriminatory distinction. 49 Likewise, courts have consistently rejected claims that wage reductions constitute cruel and unusual punishment under the Eighth Amendment, where there are no allegations that the affected prisoner has been deprived of minimal necessities as a result. 50 Thus, in the absence of a clear right to wages, 51 the deprivation of which would undoubtedly infringe on substantive constitutional rights, it is unlikely that a right to be paid under state law creates an entitlement protected by the Federal Due Process Clause. Your best course in the effort to obtain 45. Michael B. Mushlin, 1 Rights of Prisoners 799 (3d ed. 2002). 46. See, e.g., Mikeska v. Collins, 900 F.2d 833, 837 (5th Cir. 1990) ( [C]ompensating prisoners for work is not a constitutional requirement but, rather, is by grace of the state. ) (quoting Sigler v. Lowrie, 404 F.2d 659, 661 (8th Cir. 1968)); Hrbek v. Farrier, 787 F.2d 414, 416 (8th Cir. 1986) (holding that there was no constitutional right to prison wages and any such compensation [was] by the grace of the state ); Piatt v. MacDougall, 773 F.2d 1032 (9th Cir. 1985) (stating that the state is obligated to pay a prisoner for work only where the state statute specifically entitles the prisoner to payment); Omasta v. Wainwright, 696 F.2d 1304 (11th Cir. 1983) (holding that the Thirteenth Amendment s prohibition against involuntary servitude is not implicated when a prisoner is forced to work and receives less than the minimum wage). 47. Some statutes allow prisoners to earn sentence reductions for prison work. See, e.g., Conn. Gen. Stat a (1996). 48. Holton v. Fields, 638 F. Supp (S.D.W.Va. 1986). 49. Wendt v. Lynaugh, 841 F.2d 619, 621 (5th Cir. 1988) (asserting that pay is discretionary and, unless some specific kind of outlawed discrimination is shown, the state has the right to make reasonable rules as to whether or not and under what circumstances it will pay prisoners ). 50. Garrido v. Coughlin, 716 F. Supp 98, 103 (S.D.N.Y. 1989). 51. Del Raine v. Bureau of Prisons, 989 F. Supp. 1373, 1374 (D. Kan. 1997) (citing Board of Regents v. Roth, 408 U.S. 564, 567, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) for the proposition that a prisoner would have a protected property interest in compensation if he had a legitimate claim of entitlement to it, and Kentucky Dep t of Corr. v. Thompson, 490 U.S. 454, 463, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989), for the rule that such an interest must have been created by explicit, mandatory language in a prison statute or regulation).

11 9 LABOR RIGHTS Ch. 37 compensation for the value of your labor is probably to pursue the claim in state court. 1. The Right to Minimum Wage Similar to the earlier discussion of a right to compensation, you have no constitutional right to be paid a minimum wage as a prison laborer. 52 Most of the litigation on the minimum wage issue has centered on the Fair Labor Standards Act of 1938 ( FLSA ), 53 a federal statue authorizing Congress to set minimum wage standards in an effort to prevent labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general wellbeing of workers. 54 The FLSA does not explicitly state that is applies to prison labor. Thus, any claim that you are entitled to a minimum wage under the FLSA depend on whether working prisoners are employees as the term is defined in the FLSA. In answering this question, courts use an economic reality test. 55 Under this test, courts look at all the circumstances of an individual s employment situation and determine whether there is an employment relationship between the individual and his supervisor or employer. Courts will generally consider whether the alleged employer: (1) Had the power to hire and fire; (2) Supervised workers and controlled the conditions of employment; (3) Determined the rate and method of payment; and (4) Maintained employment records. 56 Most courts have held that while you are not unconditionally excluded from FLSA protection by virtue of your prisoner status, 57 courts applying the economic reality test have almost always found that prison workers who work in prison settings are not employees as defined under the statute. 58 In particular, FLSA does not apply 52. Hale v. Arizona, 993 F.2d 1387 (9th Cir. 1993) (prisoners who work as a result of the state s requirement that prisoners work at hard labor are not considered to be in the employee-employer relationship with the state under the FLSA, and therefore are not entitled to a minimum wage). 53. Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq. (2000) U.S.C.S. 202(a) (2000). 55. See, e.g., Goldberg v. Whitaker House Co-Op., Inc., 366 U.S. 28, 33, 81 S. Ct. 933, , 6 L. Ed. 2d 100, 103 (1961) (announcing that the economic reality test is the appropriate test of employment). 56. Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983). 57. In Hale v. Arizona, 993 F.2d 1387, 1393 (9th Cir. 1993), the court refused to hold that prisoners may never be employees under the FLSA because the definition of employee under FLSA is similar to the definition of employee under Title VII. See also Baker v. McNeil Island Corr. Ctr., 859 F.2d 124 (9th Cir. 1988) (holding that a prisoner may be an employee as defined by Title VII and entitled to Title VII protections). 58. See, e.g., Villarreal v. Woodman, 113 F.3d 202 (11th Cir. 1997) (pre-trial detainees who perform services at the direction of correction officials and for the benefit of the correctional facility are not covered under the FLSA); Hale v. Arizona, 993 F.2d 1387 (9th Cir. 1993); Harker v. State Use Indust., 990 F.2d 131 (4th Cir. 1993) (holding that the FLSA does not apply to prisoner labor); Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992) (denying minimum wage for labor because prisoners are not prohibited from involuntary servitude under the Constitutional and there is no constitutional right to compensation for such work); Miller v. Dukakis, 961 F.2d 7 (1st Cir. 1992) (although plaintiffs

12 Ch. 37 A JAILHOUSE LAWYER S MANUAL 10 where a prisoner s labor provides services to the prison. 59 Most courts have emphasized the fact that prisoners are unlike employees within the traditional employment relationship because they have not contracted with the state to become employees and are completely controlled by prison authorities. 60 Other courts have noted that the purpose of the FLSA would not be served by designating prisoners as employees. In Hale v. Arizona, 61 the Ninth Circuit recognized the improvement of workers standard of living as the primary objective of the FLSA but determined that the problem of substandard living conditions does not apply to prisoners, for whom clothing, shelter, and food are provided by the prison. 62 Courts have been more receptive to FLSA claims by prisoners working for private employers engaged in private commerce outside of the prison, a situation which has become quite common. In Barnett v. Young Men s Christian Association, Inc., 63 the court found that FLSA applied to a prisoner who served as a maintenance worker at the YMCA. The Barnett Court noted that although the YMCA controlled the conditions of his employment, the statute applied because the work was for a private employer not in the business of prison maintenance or service, and that the employer had the power to hire and fire the prisoner. In Watson v. Graves, 64 the Fifth Circuit, relying heavily on Carter v. Dutchess Community College, 65 a Second Circuit case, held that the FLSA applies to prisoners working for private employers outside the prison. The court in Watson explained that Congress passed the FLSA in part to prevent unfair competition, and that allowing private companies to pay prison workers far lower wages than companies are permitted to pay workers in the general public could confer a significant competitive advantage on those companies that are able to secure prison employment. 66 The Watson Court applied the economic reality test and found that an employment relationship existed. were sentenced to a treatment facility, they had committed serious crimes and thus are still considered prisoners and, as such, are not employees under the FLSA). 59. See, e.g., Danneskjold v. Hausreth, 82 F.3d 37 (2nd Cir. 1996) (recognizing that while the economic reality test may still apply in determining whether the FLSA extends to prison labor, but rejecting the four-part Bonnette test in holding that because prisoner was not an employee for the purposes of the FLSA because he worked in an educational program that provided rehabilitation services only to other prisoners); Vanskike v. Peters, 974 F.2d 806, (7th Cir. 1992) (declining to use the four-part Bonnette test on the grounds that forced prison labor for the prison is not subject to the FLSA). But see Watson v. Graves, 909 F.2d 1549 (5th Cir. 1990) (applying the economic reality test and holding that the prisoners were employees under the FLSA). 60. See, e.g., Vanskike v. Peters, 974 F.2d 806, (7th Cir. 1992) (noting that the control the prison exercises over the prisoner is nearly total and that prisoners have not contracted with the government to become its employees ). 61. Hale v. Arizona, 993 F.2d 1387 (9th Cir. 1993). 62. Hale v. Arizona, 993 F.2d 1387, 1396 (9th Cir. 1993). 63. Barnett v. Young Men s Christian Ass n, Inc., 1999 U.S. App. LEXIS Watson v. Graves, 909 F.2d 1549 (5th Cir. 1990). 65. Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 15 (2nd Cir. 1984) (holding that an outside employer may, depending on the circumstances, have to pay a prisoner employee the federal minimum wage). 66. Watson v. Graves, 909 F.2d 1549, 1554 (5th Cir. 1990).

13 11 LABOR RIGHTS Ch. 37 Still, other courts have held that the FLSA can never be applied to cover prison laborers, 67 and most courts have refused to extend the FLSA to cover prisoners working for private employers within prison walls. 68 State minimum wage laws usually define employees in a manner similar to that of the FLSA, 69 and courts similarly apply the economic reality test in order to determine whether prisoners are employees under the state minimum wage laws. 70 As a result, prisoners seeking benefit of state minimum wage law have had limited success when the work is conducted within prison walls. 2. Withheld Pay and Due Process Both state law and federal law allow prisons to withhold your wages to pay for various programs and services. Such legislation has set aside wages for the payment of court fees, incarceration costs, medical costs, and victim restitution. 71 A federal program called the Inmate Financial Responsibility Program mandates that prisoners commit a portion of their prison employment earnings to court-ordered prisoner compensation, 72 and a statute termed the Mandatory Victim Restitution Act requires restitution for all victims of the offense of conviction. 73 A number of states have similar programs requiring payments to victims and their families 74 and towards medical and administrative costs See, e.g., Hale v. State of Arizona, 993 F.2d 1387 (9th Cir. 1993) (holding that all prison labor belonged to the institution and that as defined in the statute, prisoners are not employees); Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1325 (9th Cir. 1991) (rejecting the contention that the FLSA applies to prisoners without a clear statement by Congress in the statute). 68. See, e.g., Gilbreath v. Cutter Biological, Inc. 931 F.2d 1320, (9th Cir. 1991) (holding that prisoners working at private plasma center inside prison were not covered by the FLSA); Alexander v. Sara, Inc., 721 F.2d 149, 150 (5th Cir. 1983) (holding that prisoners working at a private laboratory inside the prison were not covered by the FLSA). 69. See, e.g., N.Y. Labor Law (LexisNexis 2005); Or. Rev. Stat (2003). 70. See, e.g., Sims v. Parke Davis & Co., 334 F. Supp 774, 789 (E.D. Mich. 1971) (stating that the economic reality test [under the FLSA] is likewise applicable to plaintiffs' claim under the Michigan Minimum Wage Law ). 71. Michael B. Mushlin, 1 Rights of Prisoners 815 (3d ed. 2003) C.F.R (2005) U.S.C.S. 3663A (2000); 18 U.S.C.S (2000). 74. See, e.g., Cal. Penal Code (West 2000) (permitting prison officials to deduct up to 50% from prison wages for the payment of restitution fines); Ariz. Rev. Stat. Ann (West 2002); 11 Del. Code Ann (Michie 2001); Fla. Stat. Ann (West 2001); Miss. Code Ann (LexisNexis 2004); N.M. Stat. Ann (LexisNexis 2001); Utah Code Ann a-4 (LexisNexis 2004); Ala. Code (Michie 1995); Minn. Stat (West 2003); Mont. Code Ann (West 2005); Nev. Rev. Stat. Ann (Michie 2005); N.J. Stat. 30:8-42 (West 1997); N.D. Cent. Code (Michie 1997); 57 Okla. St. 549 A.5 (LexisNexis 2004); S.D. Codified Laws 23A-28B-40 (West 2004); Rev. Code Wash (West 2004); Wyo. Stat (LexisNexis 2005). 75. See, e.g., Fla. Stat (2)(c) (requiring prisoners to reimburse the state for expenses incurred in sustaining the prisoner, and stating that prisoners should only retain a minimal amount of money for personal use); Miss. Code Ann ; N.M. Stat. Ann ; Ala. Code ; Minn. Stat ; Minn. Stat ; N.D. Cent. Code

14 Ch. 37 A JAILHOUSE LAWYER S MANUAL 12 The constitutionality of these schemes has been challenged usually unsuccessfully on due process grounds. The Fifth and Fourteenth Amendments to the Constitution establish that no person may be deprived of life, liberty, or property without due process of law. 76 Prisoners have alleged that the statutes authorizing prison officials to withhold pay in amounts largely at their discretion allow for the deprivation of property without due process of law. In Mahers v. Halford, a prisoner challenged a statute requiring convicted prisoners to compensate their victims and to reimburse the state for the costs of their public attorneys. 77 Under the law, 78 a prisoner is entitled to be heard before the court sets the amounts to be paid, and may have the plan reviewed in court at any time during his or her incarceration. 79 Prison authorities will then set aside twenty percent of the prisoner s earnings for payment of the money due. The Mahers Court found that the system did not violate due process. First, it acknowledged that prisoners have a property interest in their earned money and may not be deprived of it without due process. 80 The Mahers Court then went on to apply a balancing test, outlined in the Supreme Court s decision in Mathews v. Eldridge, 81 to determine exactly what process is due before the money can be applied towards the prisoner s restitution obligations. The test instructs courts to balance three factors in making this determination: (1) The private interest that will be affected by the official action (here the withholding of the wages); (2) The risk of an erroneous deprivation of that interest; and (3) The government s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 82 The Mahers Court found that the statute s notice and hearing proceedings satisfied the due process requirement, emphasizing: (a) that prisoners are not totally deprived of the benefit of their money when a portion of it is withheld; 83 (b) that restitution served the important state interests of compensating victims and teaching prisoners responsibility; 84 (c) that the state has a significant interest in maintaining administrative control over its prisons; 85 and (d) that due process protections 76. U.S. Const. Amend. V; U.S. Const. Amend. XIV. 77. Mahers v. Halford, 76 F.3d 951 (8th Cir. 1996). 78. Iowa Code Ann (West 2003). 79. Iowa Code Ann (West 2003) 80. Mahers v. Halford, 76 F.3d 951, 954 (8th Cir. 1996). 81. Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). 82. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976). 83. Mahers v. Halford, 76 F.3d 951, (8th Cir. 1996). 84. Mahers v. Halford, 76 F.3d 951, 956 (8th Cir. 1996). 85. Mahers v. Halford, 76 F.3d 951, 956 (8th Cir. 1996).

15 13 LABOR RIGHTS Ch. 37 applicable to prisoners are more limited. 86 Most courts have taken an approach similar to that of the Eighth Circuit The Right to Interest on Earnings Prisoners who are compensated for their labor usually cannot store or carry their money; instead, prisoners are provided prison accounts into which the funds are deposited. These personal accounts raise the question whether prisoners have the right to earn interest on the accounts, or, more specifically, whether the failure to pay interest on the accounts is a taking of property subject to protections of the Constitution s Fifth Amendment. 88 In Schneider v. California Department of Corrections, 89 the Ninth Circuit recognized a property interest in such accounts. However, on remand, the district court ruled that despite the existence of this property interest, the prison administrator s failure to pay interest was not a takings violation of the Fifth Amendment. 90 In its inquiry, the district court applied the case-by-case factual inquiry established by the Supreme Court in Penn Central Transportation Co. v. New York City. 91 In that case, the court identified three factors relevant to the analysis: (1) The economic impact on the plaintiff (the party alleging a taking, in this case the prisoner); (2) The extent of interference with the plaintiff s investment-backed expectations ; and (3) The character of the governmental action in question. 92 Applying the test, the district court in Schneider found that since the cost of administering the accounts exceeded the interest that would have been earned, the balance of interests tilted towards the state. The holding leaves open the question whether a similar scheme in which the administrative costs do not exceed the interest to be earned would be permissible. However, no court has taken an approach similar to that of the Ninth Circuit, and the Fourth Circuit recently held that prisoners have no common law property interest in their prison wages and that there is no taking if the interest in the accounts is used for the general benefit of prisoners Mahers v. Halford, 76 F.3d 951, 956 (8th Cir. 1996). 87. See, e.g., United States v. Jennings, No , 2000 U.S. App. LEXIS 566 (7th Cir. 2000) (unpublished) (holding that notice and post-deprivation grievance procedures provide sufficient due process protections when prison administrators freeze a prisoner s prison trust account). 88. The Fifth Amendment prohibits the taking of property for public use without just compensation. U.S. Const. Amend. V. 89. Schneider v. Cal. Dep t of Corr., 151 F.3d 1194, 1998 U.S. App. Lexis (9th Cir. 1998). 90. Schneider v. Cal. Dep t of Corr., 91 F. Supp 2d 1316, 2000 U.S. Dist. LEXIS 4199 (N.D. Cal. 2000). 91. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). 92. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631, 648 (1978). 93. Washlefske v. Winston, 234 F.3d 179, 2000 U.S. App. LEXIS (4th Cir. 2000).

16 Ch. 37 A JAILHOUSE LAWYER S MANUAL The Right to Unemployment Compensation Though most of the nation s prisoners are not employed, 94 nonworking prisoners are generally ineligible for unemployment compensation. Prisoners have been explicitly excluded from unemployment compensation provisions in some federal statutes, 95 and prisoners have been denied such compensation by state law as well. 96 D. The Right to Compensation for Work-Related Injuries If you are injured or disabled while working, there are generally three avenues to recovery. You can: (1) Sue in tort where permitted; (2) Seek recovery under a state workers compensation statute (if you are a state prisoner); or (3) File a claim under federal statute (if you are a federal prisoner) Tort Suits If you are injured as a result of negligence by state prison administrators, you may attempt to bring suit in state court to recover for your injuries. In order to win, you must prove the three elements necessary to any successful negligence claim. You must show that: (1) The allegedly negligent party owed you a duty of care; (2) The party breached this duty; and (3) Your injury was proximately caused by the breach. If you seek to bring a claim of negligence in federal court, you can assert that the prison or a prison official has violated your constitutional rights under the Eighth Amendment, which prohibits cruel and unusual punishment While 90% of the prison population worked in 1885, in 1997 only 6.2% were gainfully employed. Stephen P. Garvey, Freeing Prisoners Labor, 50 Stan. L. Rev. 339, 370 (1998) (citing Greg Wees, Prison Industries 1997, Corrections Compendium, June 1997). 95. See 5 U.S.C. 8501(1)(F), (G); 18 U.S.C. 1761(c)(3). 96. See, e.g., Kroh v. Unemployment Compensation Bd. of Review, 711 A.2d 1093, 1998 Pa. Commw. LEXIS 335 (Pa. Commw. Ct. 1998) (rejecting a prisoner s contention that the denial of unemployment benefits constituted an equal protection violation). 97. Michael B. Mushlin, 1 Rights of Prisoners 820 (3d ed. 2003). 98. It is difficult to make out a constitutional claim that would enable you to bring your claim of negligence in federal court under 28 U.S.C To make out an Eighth Amendment claim (perhaps that unsafe working conditions constituted unnecessary and wanton infliction of pain, thereby violating the prohibition against cruel and unusual punishments), you would have to prove that the violation was a result of deliberate indifference to your safety needs. Deliberate indifference is more difficult to establish than ordinary negligence, which only requires you to show that the other party failed to meet the ordinary duty of care. See, e.g., Bagola v. Kindt, 131 F.3d 632, 646, 1997 U.S. App. LEXIS (7th Cir. 1997) (holding that, in order to establish the liability of a prison official under the Eighth Amendment, an injured prisoner must show that the prison official acted with deliberate indifference, which is defined as knowing that prisoners face a substantial risk of serious harm and disregarding that risk by failing to take reasonable measures to reduce or eliminate it).

17 15 LABOR RIGHTS Ch. 37 Whether you bring a claim in state or federal court, you also might have to defeat any applicable defenses that the state or federal government may raise. These defenses include: (1) Contributory negligence (i.e., that because you were partly at fault, you cannot recover); (2) Comparative negligence (i.e., that any recovery you could attain is proportionately reduced by your share of fault), 99 and (3) Assumption of risk (i.e., that you cannot recover because you understood the risk of your actions). 100 While the law varies from state to state, there are cases holding that prison officials have a duty to protect prisoners from unreasonable risks of physical harm with regard to prisoners performance of work duties. 101 Some states bar tort suits by prisoners against their state employees on the grounds that such suits are barred by the doctrine of sovereign immunity State Law 99. Comparative negligence is a defense to a claim of negligence which, if proven, reduces the liability of the negligent party by her percentage of fault. See, e.g., Wash. Rev. Code Ann (2005) ( In an action based on fault seeking to recover damages for injury or death to person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault, but does not bar recovery. ). Only four states retain the older contributory negligence doctrine, under which a plaintiff who is at fault to any degree recovers nothing According to the Restatement (Second) of Torts, assumption of risk, another valid defense against a negligence claim, is the principle that [a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm. Restatement (Second) of Torts 496A (1965). The Hawaii Supreme Court, however, has ruled that the assumption of risk defense is not available in tort suits arising out of prison employment, since prisoners are not free to choose whether to work and cannot bargain over the terms of employment. Haworth v. State, 592 P.2d 820, 60 Haw. 557 (Haw. 1979) See, e.g., Becnel v. Charlet, 569 So. 2d 9 (La. Ct. App. 4th Cir. 1990) (finding that a state prison employee who injured a prisoner while performing a demonstration with a chisel had breached his duty to handle the tool with reasonable care so as to avoid causing harm to anyone in close proximity). But see Porter v. Ohio Dep t of Rehab. & Corr., 62 Ohio Misc. 2d 296, 598 N.E.2d 241 (Ohio Ct. Cl. 1991) (finding no breach of prison official s duty of reasonable care and protection for failing to properly instruct a prisoner on how to construct a scaffold, where the prisoner had never worked with a scaffold but was working with another prisoner who had, since the construction of the scaffold did not require technical skills, the risk associated with assembling and using the scaffold was not unreasonable, and the prisoner was supervised) Warren v. Town of Booneville, 118 So. 290, 151 Miss. 457 (Miss. 1928). Professor Mushlin writes, however, that [t]here are recent cases indicating that courts do not look favorably on [the sovereign immunity] defense. Michael B. Mushlin, 1 Rights of Prisoners 822 (3d ed. 2003). See, e.g., Warren v. State, 939 S.W.2d 950 (Mo. Ct. App. 1997) (holding that the state is not immune from tort liability where plaintiff s injury arises out of a public employee s negligent operation of a motor vehicle or from dangerous conditions of public property); Williams v. Dep t. of Corr., 481 S.E.2d 272, 224 Ga. App. 571 (Ga. Ct. App. 1997) (finding that the state was not necessarily exempt from prisoner s tort suit, and thus the trial court acted improperly when it held that there was no issue for the jury as to the state s tort liability, where the prisoner was injured operating a tractor on a highway while a prisoner of the state).

18 Ch. 37 A JAILHOUSE LAWYER S MANUAL 16 State workers compensation statutes generally provide specific caps on damage awards, which means that less money is recoverable through workers compensation claims than through tort suits. On the other hand, workers compensation statutes generally will not require that you establish the state s proof of fault. Your chances for recovery under workers compensation laws vary from state to state. Some statutes specifically exclude prisoners from their systems. The Florida statute, for example, makes clear that [n]o prisoner compensated under this section shall be considered as an employee of the state or the department, nor shall such prisoner come within any other provision of the Workers' Compensation Act. 103 On the other hand, workers compensations statutes in several states do not clearly indicate whether prisoners are covered. For the most part, when the workers compensation statute in a given state is ambiguous, the courts have held that prisoners are not covered. In interpreting statutory definitions of covered employees, some courts have found that the statutes presuppose a voluntary employment relationship, meaning that prison labor, being involuntary, is not covered. For example, the Supreme Court of Arizona emphasized that the term for hire in its statute 104 impl[ies] a voluntary relationship between the parties which does not exist for prisoners who are compelled by statute to perform manual labor. 105 Other courts have based the denial of prisoners claims on the fact that prisoners do not receive significant compensation for their work, reasoning that the legislature, therefore, could not have intended for them to be thought of as employees Fla. Stat Ann (5) (2005). See also Kofoed v. Industrial Commission, 872 P.2d 484, 236 Utah Adv. Rep. 22 (Utah Ct. App. 1994) (finding that Utah s workers compensation statute was amended to explicitly exclude prisoners from its definition of covered employees) Ariz. Rev. Stat (6) (b) Watson v. Industrial Commission, 414 P.2d 144, 148, 100 Ariz. 327, 332 (Ariz. 1966) (quoting Greene s Case, 182 N.E. 857, 857, 280 Mass. 506, 507 (Mass. 1932); See also Frederick v. Men s Reformatory, 203 N.W.2d 797 (Iowa 1973) (holding that prisoners do not fall under the state worker s compensation statute because they have not freely and fully contracted for employment); Drake v. Essex County, 469 A.2d 512, 192 N.J. Super. 177 (N.J. Sup. Ct. App. Div. 1983) (finding that prisoners are not eligible for workmen s compensation, as such arrangements lack the voluntariness of contract necessary to qualify under the statute); Spikes v. State, 458 A.2d 672 (R.I. 1983) (holding that prisoner s own work assignments are ineligible for workmen s compensation, as the statute requires a voluntary, for hire form of employment) See, e.g., Keeney v. Industrial Commission, 535 P.2d 31, 24 Ariz. App. 3 (Ariz. Ct. App. 1975) (holding that statutory provision allowing prisoners to be paid a maximum of 35 cents per hour could not constitute a contract for hire, which is necessary to establish an employer-employee relationship); Jones v. Houston Fire & Cas. Ins. Co., 134 So. 2d 377 (La. Ct. App. 1961) (finding that the payment of two cents an hour was a mere gratuity under the Louisiana statute to rehabilitate the prisoner and did not create an employment relationship); Goff v. Union County, 57 A.2d 480, 26 N.J. Misc. 135 (Dep t of Labor 1948) (finding that the prisoner did not have an employer-employee relationship with the state, in part, because work in exchange for food cannot properly be considered compensations ).

19 17 LABOR RIGHTS Ch. 37 A few courts characterize prison labor as rehabilitation rather than employment and use this argument to hold that prisoners are not covered by statute. 107 In contrast, some recent opinions suggest that courts may be moving towards wider acceptance of statutory interpretations that are more protective of prison laborers, though most of the movement in this direction has been driven by the claims of prisoners working for private entities. 108 A third group of states has enacted statutes allowing prisoners to be compensated for work-related injuries. This group includes California, Iowa, North Carolina, South Carolina, Oregon, Washington, Nebraska, Maine, Maryland, Utah, Rhode Island, and Wisconsin. 109 In most of these jurisdictions, claims are not litigated nor damages paid until the prisoner in question has finished serving his sentence. 110 This may be an effort to avoid jealousy and animosity that could develop if some prisoners had considerably more money than others, or it may be a response to the fact that prisoners generally do not need benefits while they are imprisoned and all their expenses are covered. 111 For the same reasons, benefits are usually terminated in the event of a prisoner s reincarceration Federal Statutory Claims Under 18 U.S.C Federal Prison Industries ( FPI ) is a corporation created by the United States Congress to determine in what manner and to what extent industrial operations shall be carried on in Federal penal and correctional institutions. 113 A federal statute authorizes payment of benefits to federal prisoners or their dependents for workrelated injuries 114 sustained in connection with the maintenance or operation of the 107. See, e.g., Frederick v. Men s Reformatory, 203 N.W.2d 797, 798 (Iowa 1973) (finding that the primary purpose of prison employment is inculcation or the reactivation of attitudes, skills, and habit patterns which will be conducive to prisoner rehabilitation; and that the prisoner s nominal fee is a reward for cooperation, not a wage) See Benavidez v. Sierra Blanca Motors, 922 P.2d 1205, 122 N.M. 209 (N.M. 1996) (holding that a prisoner participating in a prisoner-release program, who was injured while performing work at a private jobsite, could be considered an employee entitled to workers' compensation benefits pursuant to the Colorado workers compensation statute; the court concluded that prisoners could legally enter into voluntary contracts under the prisoner-release program and noted that the legislature had specifically described the work relationship between work-release prisoners and the private businesses that engaged them as employment, and the businesses using prison labor as employers ). See also Blackmon v. North Carolina Dep t. of Corr., 470 S.E.2d 8, 343 N.C. 259 (N.C. 1996) (ruling that the family of a prisoner who was killed while employed in a work release program could recover unemployment compensation) Larson s Workers Compensation Law [6] (2005) See, e.g., Md. Labor and Employment Code Ann (c)(2) (LexisNexis 2005); Or. Rev. Stat (1) (2003); N.C. Gen. Stat (c) (1999); Wis. Stat (2005) Michael B. Mushlin, 1 Rights of Prisoners (3d ed. 2003). Professor Mushlin also points out that the rate of compensation authorized by statutory provisions covering injured prisoners is generally lower than that paid to comparably injured non-prisoners, a fact which he suggests raises equal protection questions See, e.g., N.C. Gen. Stat (c) (2005); Or. Rev. Stat (2) (2003) U.S.C. 4122(a) (2000) The statute does not provide for recovery for non-work-related injuries; such claims may be actionable under the Federal Tort Claims Act ( FTCA ). See, e.g., United States v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963) (holding that a prisoner may sue for non-work related

20 Ch. 37 A JAILHOUSE LAWYER S MANUAL 18 institution where confined. 115 The benefits are to be paid out of the Prison Industries Fund, which includes [a]ll moneys under the control of Federal Prison Industries, or received from the sale of products or by-products of such Industries, or for the services of federal prisoners. 116 The Supreme Court and various other federal courts have held that Section 4126 constitutes the exclusive remedy for prisoners seeking compensation. 117 Consequently, you may not recover from the government under the Federal Tort Claims Act 118 for ordinary work-related injuries. 119 However, tort suits against the individuals at fault still may be possible. 120 Moreover, Section 4126 compensation is claimable and collectible while you are still incarcerated unlike recovery under the state statutes discussed above. 121 In order to take advantage of 4126 in the event that you are injured in the performance of assigned duties, you should report the injury to your superior and obtain medical treatment if necessary. 122 At this point, a record of the injury is made. 123 However, the formal claim only may be filed at least fifteen and at most forty five days prior to your release. 124 A claims examiner appointed by FPI will make the injuries caused by a government employee s negligence); Wooten v. United States, 825 F.2d 1039 (6th Cir. 1987) (remanding the case for the lower court to determine the extent to which a prisoner s back problem existed before incarceration and would thus be actionable under the FTCA) U.S.C. 4126(c)(4) (2000) U.S.C. 4126(a) (2000) See, e.g., United States v. Demko, 385 U.S. 149, 87 S. Ct. 382, 17 L. Ed. 2d 258 (1966) (holding that 4126 is the sole remedy against the government where the injury is work-related, and the cause of injury is irrelevant so long as it occurred in the course of the prisoner s employment); Aston v. United States, 625 F.2d 1210 (5th Cir. 1980) (finding that 4126 is the sole remedy for workrelated injuries where a prisoner fell off of a stool cleaning shelves); Sturgeon v. Fed. Prison Indust., 608 F.2d 1153 (8th Cir. 1979) (holding that a prisoner must use all administrative remedies through 4126); United States v. Gomez, 378 F.2d 938 (10th Cir. 1967) (holding that 4126 is the exclusive remedy for a prisoner working on a prison construction case); Granade v. United States, 356 F.2d 837 (2nd Cir. 1966) (explaining that 4126 is the exclusive remedy though the provision does not explicitly state this requirement) U.S.C (2000) United States v. Demko, 385 U.S. 149, 87 S. Ct. 382, 17 L. Ed. 2d 258 (1966) (holding that 4126 is the sole remedy against the government where the injury is work-related, and the cause of injury is irrelevant so long as it occurred in the course of the prisoner s employment); Wooten v. United States, 825 F.2d 1039 (6th Cir. 1987); Aston v. United States, 625 F.2d 1210 (5th Cir. 1980); Thompson v. United States, 495 F.2d 192 (5th Cir. 1974). See also Wooten v. United States, 437 F.2d 79, 80 (5th Cir. 1971) (holding that an injury sustained by a prisoner on his way to lunch was actionable under 4126 since the journey to and from meals is within the course of employment ) See Tindall v. Moore, 417 F. Supp. 548, 552 (N.D. Ga. 1976) (holding defendant s purely routine determination while a prisoner operated machinery in a factory allowed defendant to be personally liable under the FTCA); Byrd v. Warden, Fed. Det. Headquarters, N. Y., N. Y., 376 F. Supp. 37, 41 (S.D. N.Y. 1974) (finding that a safety officer who failed to provide a prisoner with safety eye goggles is personally liable under the FTCA because he need not be able to exercise unfettered discretion ) Thompson v. U.S. Fed. Prison Indust., 492 F.2d 1082 (5th Cir. 1974) (holding that a prisoner may collect a partial amount of lost wages while still in custody after the prisoner injured his back) C.F.R (2005) C.F.R (2005) C.F.R (a) (2005).

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