Natalie Hurst, Associate Member, University of Cincinnati Law Review
In 2020, U.S. incarcerated workers have been on the frontline battling the COVID-19 pandemic and the deadly wildfires in the West. These actions have raised the question: why does the country rely on prison labor while failing to provide the incarcerated workers with basic employment protection? Incarcerated workers face a multitude of dangerous conditions when forced to work during the COVID-19 pandemic—such as upkeeping factory production, producing primary protective equipment for the public, and fighting wildfires. Despite the valuable contributions produced by prison labor, especially during the pandemic, incarcerated workers are not afforded basic employment protection and are subjected to unfair labor practices, such as little to no pay. Currently, incarcerated workers are not afforded protections under the Fair Labor Standards Act (“FLSA”). Additionally, incarcerated workers can be subjected to “involuntary servitude” pursuant to the punishment clause in the 13th Amendment. Employment protections should be extended to incarcerated workers by (1) expanding the interpretation of “employee” under the FLSA to include incarcerated workers and (2) by amending the punishment clause in the 13th Amendment.
A. The Fair Labor Standards Act and Incarcerated Workers
In 1938, the FLSA was adopted to protect employees by establishing “minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments.” The FLSA defines an employees as “any individual employed by an employer,” while also providing exceptions for persons not considered employees, such as family farm workers, volunteers for public agencies, and volunteers for purely humanitarian purposes. Notably, the exceptions defined in the FLSA do not specify that prisoners are not considered employees.
However, court precedents have established that prisoners are not considered “employees” under the intended meaning in the FLSA. An important case from the Fourth District Court of Appeals in Maryland, Harker v. State Use Industries, highlights this reasoning. In Harker, Maryland state prisoners sued the entity responsible for the prison labor industries alleging that the FLSA was violated because they were not being compensated at the rate of the federal minimum wage. The court rejected the prisoners’ argument by distinguishing the custodial relationship of prisoners from the employee-employer relationship covered in the FLSA. Moreover, the court noted that the FLSA was intended to maintain a “standard of living” for workers and not wards of the state whom are provided “standard of living” care by the state while incarcerated. Finally, the court concluded that “if the FLSA’s coverage is to extend within prison walls, Congress must says so, not the courts.” Other court cases have relied on similar reasoning to reject extending FLSA coverage to prisoners. Additionally, courts have also rejected inmates’ employment discrimination claims on the same basis.
B. The 13th Amendment and Incarcerated Workers
Some refer to the 13th Amendment as having a “slavery loophole” that permits prison labor to be utilized as “slave labor.” The 13th Amendment abolished slavery in the United States “except as a punishment for crime.” Immediately following the adoption of the 13th Amendment, the punishment clause essentially replaced pre-Civil War enslaved persons with a state-sanctioned labor force comprised of incarcerated workers – with slaves on plantations merely being replaced by prisoners. The “involuntary servitude” exception in the 13th Amendment birthed the current prison labor industry – with almost 55% of the American prison population working while serving prison sentences. Incarcerated workers either do “prison support work,” which entails running the daily operations of the prison, or a “correctional industry” job, such as contracted jobs like making license plates, sewing uniforms, or staffing call centers. As seen in the news, correctional industries are responsible for using incarcerated workers to produce protective gear during the pandemic and conscripting prisoners to fight wildfires.
To challenge labor issues, prisoners can bring legal action under a §1983 civil rights claim based on 13th Amendment slavery violations. However, the 13th Amendment punishment loophole serves as an obstacle that prevents prisoners from succeeding on their claims. For example, a case from the Fifth Circuit held that the 13th Amendment supports the proposition that “compelling an inmate to work without pay in not unconstitutional.” In 2019, a court held that “prison work assignments differ from traditional employment…because prisoners do not have a constitutional right to compensation for worked performed in prison” citing the 13th Amendment. The U.S. Supreme Court has declined to review many appeals involving this issue. Essentially, courts have adopted a narrow view of modern prison labor, deciding that the punishment clause renders the 13th Amendment a nonstarter as a means for prisoners to seek redress for employment claims.
The 13th Amendment in conjunction with the lack of protection from the FLSA continues to disenfranchise prisoners by not paying them fairly for their work or recognizing them as employees. However, there is no language in the FLSA that suggests that prisoners should not be considered employees and, thus, afforded employment protection, including minimum wage. For example, the court in Harker indicated that it was Congress’s prerogative to extend FLSA protections to prisoners and that it was not the courts’ job to do so. Congress did pass judgment on who should and should not be considered employees under the FLSA by providing a list of exceptions in the statute. The FLSA, as written, suggests that Congress intended to include prisoners within its scope because Congress never added prisoners to the list of those considered exempt from employee status. Congress had the opportunity to exempt prisoners when drafting the statute, as it made exemptions for other actors, but Congress chose not to do this. Thus, the FLSA can be interpreted to extend protection to incarcerated workers meaning they should be perceived as employees and entitled to federal minimum wage. Some courts have adopted this reasoning, but it needs to be adopted uniformly throughout the country at the state and federal level.
Though the FLSA can be interpreted as extending protection to prisoners, the 13th Amendment’s “slavery loophole” can always be used to justify low wages (and sometimes no wages) for prisoners. This provides a serious reason for amending the 13th Amendment to remove the loophole and ability to punish prisoners with “involuntary servitude.” Incarcerated workers will never receive just treatment if they can legally be treated as “involuntary servants” or if their labor can be taken advantage of for free. To fairly compensate incarcerated workers, the legislatures must amend the 13th Amendment’s “slavery loophole.” Once this happens, the Constitution will no longer be a roadblock to fair treatment for incarcerated workers; thus, allowing easier redress in the court systems.
On the other hand, many proponents of prison labor argue that the benefits greatly outweigh the wage issue. Practically, prison labor is much more cost-effective than traditional labor. For example, prison systems would have substantial increases in costs if required to pay inmate workers minimum wage. Some argue that current prison labor practices reduce recidivism and smooth the transition back into society upon release. However, this argument in favor of current prison labor practices does not preclude the important considerations against. From a financial angle, the meager compensation that incarcerated workers receive harms their ability to adjust to society upon re-entry because they are often in crippling debt. Moreover, prisoners’ earnings are not enough to cover the court fees and fines, restitution, child support, and room and board expenses that most state departments of corrections deduct from prisoners’ earnings. Finally, it is demeaning to exert power over vulnerable human beings by making them work for little to no wages while arguing that it is for their benefit (e.g., arguing that paying prisoners little to no wages somehow helps them re-enter society). In reality, those who take advantage of cheap (or free) prison labor, such as states and federal governments and businesses, are the ones truly seeing any benefits.
It is immoral to utilize prison labor for valuable services while failing to fairly compensate those who provide the valuable service. For example, people tend to collectively disapprove of the use of “sweat shops,” which feature underpaid workers with limited employment protections, and this same view should be applied to the current prison labor industry. Moreover, as apparent in the news, prison labor is being utilized for important and dangerous work, such as sanitizing hospitals during the pandemic and fighting wildfires. Incarcerated workers are literally putting their lives on the line only to be compensated with pennies. It would be unthinkable to pay healthcare workers or firefighters only cents an hour for their work. Yet, one phrase in the 13th Amendment has somehow made it justifiable to treat incarcerated workers as forced, cheap laborers.
It is apparent that states, the federal government, and many businesses rely on prison labor to keep costs low for valuable services. However, saving money is not a moral justification for the devaluation of human labor. It is time for incarcerated workers to be treated fairly under the law.
Current events, such as the COVID-19 pandemic and devastating wildfires in the West, have shed light on this country’s long-held practice of paying little to nothing for prison labor. It is immoral to take advantage of incarcerated workers while affording them no employment protections. Employment protections can and should be extended to incarcerated workers by (1) providing incarcerated workers minimum wage and other employee-status benefits as guaranteed under the FLSA and (2) by closing the slavery loophole in the 13th Amendment.
 Eliyahu Kamisher, Prison Labor Is on The Frontlines of the COVID-19 Pandemic, The Appeal (Oct. 5, 2020), https://theappeal.org/prison-labor-is-on-the-frontlines-of-the-covid-19-pandemic/.
 See e.g., Nancy Beliyeau, Prison Labor During Pandemic Fuels Calls for New Constitutional Amendment, The Crime Report, (Oct. 14, 2020), https://thecrimereport.org/2020/10/14/prison-labor-during-pandemic-fuels-calls-for-new-constitutional-amendment/.
 E.g., Kiera Feldman, California Kept Prison Factories Open. Inmates Worked for Pennies an Hour as COVID-19 Spread, L.A. Times (Oct. 11, 2020), https://www.latimes.com/california/story/2020-10-11/california-prison-factories-inmates-covid-19.
 E.g., Jeremy Pelzer, Ohio Employs Prison Labor to Fill Shortage of Masks, Gowns and Other Protective Equipment, Cleveland.com (Mar. 30, 2020), https://www.cleveland.com/coronavirus/2020/03/ohio-employs-prison-labor-to-fill-shortage-of-masks-gowns-and-other-protective-equipment.html.
 E.g., Cristie Thompson, The Former Prisoners Fighting California’s Wildfires, The Marshall Project (Sept. 9, 2020), https://www.themarshallproject.org/2020/09/02/the-former-prisoners-fighting-california-s-wildfires.
 Kamisher, supra note 1.
 Fair Labor Standards Act of 1938, as amended 29 U.S.C. 201, et. seq.; See also, Sessi K. Blanchard, Labor Law Doesn’t Apply If You’re in Prison, Truthout (Mar. 30, 2019), https://truthout.org/articles/labor-law-doesnt-apply-if-youre-in-prison/.
 U.S. Const. Am. XIII, § 1.
 U.S Dept. of Labor, Wage and Hour Div., Handy Reference Guide to the Fair Labor Standards Act (revised 2016), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh1282.pdf.
 29 U.S.C. §203(e)(1).
 See e.g., Harker v. State Use. Indus., 990 F.2d 131 (4th Cir. 1993).
 Id. at 132.
 Id. at 133.
 Id. at 136.
 See e.g., Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992); Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320 (9th Cir. 1991); Hamilton v. Dart, 2013 U.S. Dist. LEXIS 43171 (N.D. Ill. 2013).
 See e.g., Alexander v. Ortiz, 2018 U.S. Dist. LEXIS 45329 at *10 (2018).
 Bilyaeu, supra note 2.
 U.S. Const. Am. XIII, § 1.
 Lauren-Brooke Eisen, Covid-19 Highlights the Need for Prison Labor Reform, Brennan Center for Justice (Apr. 17, 2020), https://www.brennancenter.org/our-work/analysis-opinion/covid-19-highlights-need-prison-labor-reform.
 James J. Stephan, Census of State and Federal Correctional Facilities, 2005, Bureau of Justice Statistics: National Prison Statistics Program (Oct. 2008), https://www.bjs.gov/content/pub/pdf/csfcf05.pdf.
 Eisen, supra note 22.
 Murray v. Miss. Dep’t of Corr., 911 F.2d 1167, 1167 (5th Cir. 1990).
 Stile v. U.S., 2019 U.S. Dist. LEXIS 9884 *12 (Dist. Ct. N.J.).
 E.g., 498 U.S. 1050 (1991) cert. denied.
 Ryan S. Marion, Prisoners for Sale: Making the Thirteenth Amendment Case Against State Private Prison Contracts, 18 Wm. & Mary Bill of Rts. J. 213, 235 (2009).
 Harker, 990 F.2d at 136.
 29 U.S.C. §203(e)(3)-(5).
 E.g., Hale v. Arizona, 967 F.2d 1356 (9th Cir. 1992).
 Eisen, supra note 22.
 Tanzina Vega, Costly Prison Fees are Putting Inmates Deep in Debt, CNN Business (Sept. 18, 2015), https://money.cnn.com/2015/09/18/news/economy/prison-fees-inmates-debt/index.html.
 Kamisher, supra note 1. Incarcerated workers are typically paid less than one dollar an hour. To add insult to injury, California prison firefighters were unable to obtain the certification to become a firefighter after their release due to their criminal record.