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Prison Labor Rights in Focus as 3rd Cir. Hears $5-a-Day Pay Case

July 14, 2022, 9:45 AM

A federal appeals court in Philadelphia will hear oral argument Thursday over whether to revive a class lawsuit alleging a Pennsylvania county prison’s work program amounts to forced labor in violation of state and federal law and the US Constitution.

Prisoners civilly detained for failure to pay child support are challenging the alleged forced-labor scheme at Lackawanna County Prison, which requires them to work for half their term at a privately owned recycling facility for $5 a day to qualify for a work-release program.

They say they can’t earn enough money to pay their “purge” amounts to get out of prison without work release, which a court sets for each prisoner held because of nonpayment of child support. But to qualify, they claim they’re forced into grueling, unsanitary labor tearing open trash bags and sorting 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 an American Civil Liberties Union report published last month. Those prisoners produce more than $11 billion in goods and services each year, while earning between 13 cents and 52 cents per hour on average, the report said.

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

The US Justice Department also filed a brief contesting the rationale a federal judge relied on to dismiss part of the prisoners’ lawsuit. But it didn’t explicitly back any party in the case.

Thursday’s oral argument marks the second time the US Court of Appeals for the Third Circuit will consider the legal challenge to Lackawanna County’s recycling center work arrangement. The court had revived some claims in 2018, pointing to the dearth of case law and the need for more consideration.

Judge Joseph Greenaway, an Obama appointee, sat on the 2018 panel and will hear oral argument. Greenaway will be joined by two judges who weren’t on that earlier panel: Richard Nygaard, a Reagan appointee, and Paul Matey, a Trump appointee.

Amended Complaint

David Burrell first challenged the Lackawanna work-release arrangement in 2014, acting as his own lawyer and filing a lawsuit in the US District Court for the Middle 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 Prison.

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

Burrell obtained legal counsel after the Third Circuit revived some of his claims. Joined by two more prisoners, he filed an amended complaint against the Lackawanna Recycling Center, its owners, the waste management authority, the county, and the prison’s administrators.

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

‘Keys to the Prison’

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

The TVPA and Thirteenth Amendment claims of forced labor and involuntary servitude fell because the prisoners didn’t show they were compelled to participate in the work-release program, Mariani said. They failed to plead any changed financial circumstances that would prevent them from paying their respective purge amounts, he said.

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

On the claim that the prisoners were paid below minimum wage, the judge applied a test from the US Court of Appeals for the D.C. Circuit’s 1994 decision in Henthorn v. Department of Navy to determine that they aren’t employees covered by federal or state wage law.

The prisoners failed to claim that their work was voluntary—one part of the Henthorn test—as they alleged they were compelled to work at the recycling operation because they lacked no other option to pay their 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 the prisoners to allege they couldn’t secure their own release to claim a violation of the TVPA’s forced labor provision. It focuses on the use of force, restraint, abuse of the legal process, or serious harm to obtain somebody’s work, it said.

“Contrary to the district court’s reasoning, it is possible for a person to use those prohibited means to coerce labor from a detainee even if the detainee retains the ability to secure release,” the Justice Department said in its brief.

But the prisoners didn’t face any coercion, as they chose to stay in jail by not paying their purge amount and then chose the recycling work involved in the “community services program,” Lackawanna County Solid Waste Management Authority said.

“The choice to participate in the community services program may not have been as appealing or lucrative as Child Support Debtors would have liked, but it was [a] choice nonetheless where they otherwise had no right to immediate work release,” the authority said in its brief.

Wage Law, Competition

The National Employment Law Project and other legal and worker advocacy groups asked the Third Circuit to reject the district court’s rule for determining FLSA coverage, saying it effectively will exclude all incarcerated people from the law’s protection.

Making FLSA coverage for incarcerated people contingent on showing the inmate freely contracted with a non-prisoner employer is an additional pleading requirement that has no basis in the law’s text or purpose, the prisoners said in their brief.

The recycling center, however, argued in its brief that the district court used the correct test, which looks at the economic reality of the working relationship. The company also noted that the operating agreement it has with the county waste authority indemnifies it for claims arising from prison inmates.

Five attorneys are scheduled to argue at the Third Circuit: Juno Turner of Towards Justice for the prisoners; Katherine Lamm of the Justice Department for the US government; David Heisler of Cipriani & Werner PC for Lackawanna County; Sarah Lloyd of the Law Firm of 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 that the prisoners’ claims are plausible and let the case go to discovery.

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

Lloyd and the Justice Department didn’t immediately respond to requests for comment.

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

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com