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Prisoners Are Entitled to Recovery For Underpayment of Wages

Prisoners Are Entitled To Recovery For Underpayment Of Wages

By Mark Cook, Leavenworth, Kansas

There are over one Million prisoners in the United States, yet we are not counted as part of the US statistical labor force. It is in the interest of those politicians in office who claim their political regime has improved the US economy not to let the public realize that the unemployment rate in the US is one percent higher than presently reported and steadily rising. It would not be good politics to publish that a method of reducing the unemployment rate is to imprison as many laborers as possible.

Prisoners are included as employees under the federal Fair Labors Standards Act (FLSA). In section 13 of the FLSA, 29 U.S.C. 213 (1982), Congress has set forth an extensive list of workers who are exempted expressly from FLSA coverage. The category of "prisoners" is not on that list See Carter v. Dutchess Community College, 735 F.2d 813 (2 Cir. 1984) and Woodall v. Partilla 581 F.Supp 1066 (N.D.Ill.E.D. 1984).

This means prisoners, contrary to common belief, are entitled to minimum wages as well as fair labor practices and working conditions. Congress passed specific laws affording prisoners the right to minimum wages.

State prisoners working in pilot projects designated by the Administrator of the Law Enforcement Assistance Administration (42 U.S.C. sec. 3701-3796) must receive wages at a rate which is not less than that paid for work of a similar nature in the locality in which the work was performed. 1 8 U.S.C. 1761(c). The Walsh-Healy Act (WHA), 41 U.S.C. 35, which specifically bars convict labor on government contracts exceeding ten thousand dollars, makes exceptions for state prisoners under 1761(c). Congress passed a similar statute covering federal prisoners providing for wages at a rate which is not less than that paid for work of a similar nature in the locality in which the work is performed. 18 U.S.C. 4082(c)(2) (prisoners in halfway houses, and working off prison grounds).

Prison authorities have been violating and breaching contracts made under the WHA for a number of years.

Prisoners, who are third parties to the contracts, have not been aware of the violations and breaches as they affect prisoners because prison authorities have taken many precautions not to let prisoners see the contracts. Those breaches and violations of stipulations and representations in the contracts give prisoners the right to recover underpayment of wages for up to two years arrears. The WHA bars convicts from working on government contracts that exceed ten thousand dollars. (with the exception of section 1761(c) prisoners) but also provides by statute for recovery of any under payment of wages due to any convict laborer knowingly employed in the performance of such contract. 41 U.S.C. 36.

How much have you state prisoners been paid for making license plates, lockers, desks, etc. for the federal government? How much have you federal prisoners been paid for working in Federal Prison Industries (FPI), commonly referred to as UNICOR? All of the contracts pertaining to the above exceed ten thousand dollars. Do you believe that prison authorities "knowingly employed" you as a convict labor in the performance of such contracts? Then you are entitled to recover underpayment of wages. 41 U.S.C. 36.

Several prisoners working as contract reviewers at the FPI in the U.S. Penitentiary at Lompoc, California, discovered stipulations and representations in every government contract requiring all persons working on those contracts to be paid not less than the minimum wage. One contract represented and stipulated, "2.13 CONVICT LABOR (Clause 10-13) (dated October 1987) in connection with the work under this contract, the contractor agrees not to employ any person undergoing sentence of imprisonment, except as provided by Public Law 89-176, September 10, 1965 (18 U.S.C. 4082(c)(2) and Executive Order 11755, December 29, 1973)."

The authorities invoked in that clause, 18 U.S.C. 4082(c)(2) and Executive Order 17755, allow prisoners in halfway houses or working off prison grounds to work on government contracts. It is quite obvious that prisoners in the U.S. Penitentiary at Lompoc are neither in halfway houses nor working off prison grounds. Thus, the prisoncrats knowingly breached and violated the representations and stipulations of the contracts and the WHA. The prisoners are thereby entitled to recover underpayment of wages pursuant to 41 U.S.C 36. The prisoners working in UNICOR, by the way, are federal, state and territorial, District of Columbia and foreign exchange prisoners.

Complaining prisoners must first advise their prison bosses of the claim for recovery of underpaid wages. That is to be followed by a complaint filed with your regional director of the U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, in your slate. If you are not satisfied with the local results you file a complaint with the Secretary of Labor, U.S. Department of Labor, 200 Constitution Ave. N.W., Washington, D.C. 20210. And if not satisfied there you can appeal to the U.S. Department of Labor's Office of Administrative Law Judges at the same address.

Convict Labor law does exist and prisoners' political clout, the ability to turn legislative and congressional heads, in part lies in the ability to invoke that law.

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