Focus on labor rights in prisons as 3rd Cir. Hears $5 a day payroll file

A federal appeals court in Philadelphia will hear oral argument Thursday on whether to revive a class action lawsuit alleging that a Pennsylvania county jail’s labor program amounts to forced labor in violation of state and federal laws and the American Constitution.

Prisoners held in civil custody for non-payment of child support are challenging the alleged forced labor program at Lackawanna County Jail, which requires them to work half of their sentence at a private recycling facility for $5 a day to get themselves qualify for a work release program.

They say they can’t make enough money to pay their “purge” amounts to get out of jail without a work release, which a court sets for every prisoner detained for non-payment of child support. But to qualify, they claim they are forced into grueling and unsanitary labor tearing up bin bags and sorting through debris.

The case could clarify what legal and constitutional protections apply to prison labor. About two-thirds of the 1.2 million people incarcerated in state and federal prisons work, according to a report by the American Civil Liberties Union released last month. These prisoners produce more than $11 billion in goods and services each year, while earning between 13 and 52 cents an hour on average, according to the report.

The National Employment Law Project, Constitutional Accountability Center, ACLU of Pennsylvania, Community Legal Services of Philadelphia and other civil, legal and labor rights groups have filed briefs supporting prisoners in the Lackawanna case. .

The US Department of Justice also filed a brief challenging the rationale a federal judge relied on to dismiss part of the prisoners’ trial. But he did not explicitly support any side in the case.

Thursday’s oral argument marks the second time the United States Court of Appeals for the Third Circuit will consider the legal challenge to the Lackawanna County Recycling Center work arrangement. The court revived some complaints in 2018, pointing to a lack of case law and the need for greater consideration.

Judge Joseph Greenway, an Obama appointee, served on the 2018 panel and will hear oral argument. Greenaway will be joined by two judges who were not part of this previous panel: Richard Nygaard, a Reagan appointee, and Paul Matey, a Trump appointee.

Amended Complaint

David Burrell first challenged Lackawanna’s work release agreement in 2014, acting as his own attorney and filing a lawsuit in U.S. District Court for the Intermediate District of Pennsylvania. Burrell had fallen behind on his child support payments, was found in civil contempt, and sentenced to two consecutive six-month terms in Lackawanna County Jail.

To meet the county’s release requirement, Burrell had to work for six months in a recycling operation at an offsite building owned by the Lackawanna County Solid Waste Management Authority, a government entity, and operated by the Lackawanna Recycling Center Inc. .

Burrell got legal advice after the Third Circuit revived some of his claims. Joined by two other prisoners, he filed an amended lawsuit against the Lackawanna Recycling Center, its owners, the waste management authority, the county and prison administrators.

He filed charges under the Trafficking Victims Protection Act, the Thirteenth Amendment, federal and state wage law, federal racketeering law, and state tort law.

“The Jail Keys”

U.S. District Judge Robert Mariani, a former labor and employment attorney appointed during the Obama administration, dismissed the lawsuit last year.

The TVPA and Thirteenth Amendment forced labor and involuntary servitude allegations fell because prisoners failed to show they were required to participate in the work release program, Mariani said. They did not plead a change in financial circumstances that would prevent them from paying their respective purge amounts, he said.

“Without such a demonstration, the Court has no basis to conclude that the plaintiffs did not have their own prison keys,” Mariani said.

On the allegation that the prisoners were paid below minimum wage, the judge applied a test from the United States Court of Appeals for the 1994 DC Circuit decision in Henthorn v. Navy Department to determine that they are not employees covered by federal or state wage law.

The prisoners did not claim their work was voluntary – part of the Henthorn test – as they alleged they had been coerced into working at the recycling operation because they had no other option to pay child support and get out of jail, Mariani said.

Focus on forced labor

The Justice Department told the Third Circuit that Mariani was wrong to require prisoners to allege they could not secure their own release to claim a violation of the forced labor provision of the TVPA. It focuses on the use of force, coercion, abuse of legal process or serious harm to get someone’s job, he said.

“Contrary to the reasoning of the district court, it is possible for a person to use these prohibited means to compel an inmate to work even if the inmate retains the ability to obtain release,” the Justice Department said in its statement. memory.

But the prisoners suffered no coercion, as they chose to remain in prison by not paying their purge amount, and then chose the retraining work involved in the “community service program”, the Authority said. Lackawanna County Solid Waste Management.

“Choosing to participate in the community service program may not have been as attractive or lucrative as support payers would have liked, but it was [a] choice nonetheless where they otherwise had no right to immediate release from work,” the authority said in its brief.

Wage Law, Competition

The National Employment Law Project and other labor and rights groups have called on the Third Circuit to reject the district court rule to determine FLSA coverage, saying it would effectively exclude all incarcerated people from the protection of the law.

Making FLSA coverage for incarcerated individuals conditional on proof that the inmate freely contracted with a non-inmate employer is an additional pleading requirement that has no basis in the text or purpose of the law, prisoners said. in their memory.

The recycling center, however, argued in its brief that the district court used the correct test, which examines the economic reality of the employment relationship. The company also noted that the operating agreement it entered into with the county waste authority compensates it for claims arising from detainees.

Five attorneys are scheduled to appear in the Third Circuit: Juno Turner of Towards Justice for Prisoners; Katherine Lamm of the US Department of Justice; David Heisler of Cipriani & Werner PC for Lackawanna County; Sarah Lloyd of the law firm Cognetti & Cimini for the Waste Management Authority; and David Overstreet of Overstreet & Nestor LLC for the recycling center.

Turner said she’s optimistic the Third Circuit will recognize the prisoners’ claims are plausible and let the case go to discovery.

Heisler said the district court’s reasoning was correct and he looks forward to oral argument. Overstreet declined to comment.

Lloyd and the Justice Department did not immediately respond to requests for comment.

The case is Burrell v. Staff, 3d Cir., No. 21-02846, pleading 7/14/22.

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