PRISON LABOR AND THE FAIR LABOR STANDARDS ACT: RESOLVING THE CIRCUIT SPLIT ON WHETHER INCARCERATED WORKERS ARE ENTITLED TO THE FEDERAL MINIMUM WAGE

Abstract

At any given time, around half the incarcerated population in the United States works full-time. A large majority of incarcerated workers are engaged in “prison housework,” doing laundry, working in the kitchen, or providing janitorial services, etc. A smaller portion of individuals work in prison industries to produce goods and services for both government agencies and private corporations. National estimates for the annual value of prison and jail industrial output come to around $2 billion. Despite this, the average wage for incarcerated individuals working in state- owned industries is anywhere between $0.33 to $1.41 per hour. Mass incarceration and the prison industry have become seamlessly intertwined with America’s racially stratified economy. Wal-Mart, Victoria’s Secret, Boeing, Microsoft, and Starbucks are some of the many major U.S. companies that have partnered with prison industries in the past to profit off of free or underpaid labor. In the absence of clear Supreme Court ruling or guidance from Congress, it remains unclear whether incarcerated workers may be considered “employees” as defined by the Fair Labor Standards Act (“FLSA”) and therefore subject to the federal minimum wage protections. Without any guidance, lower courts have developed a patchwork of conflicting standards and formalistic dichotomies to address the issue of FLSA coverage for incarcerated workers. This Note analyzes the circuit split on the question of FLSA coverage and provides recommendations on how the Supreme Court should decide the issue. This Note goes on to advance a new “but-for” test for courts to adopt when deciding which kinds of incarcerated workers should be covered by the FLSA.