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Water Jet Companies Challenge Washington Slave Labor Laws

On August 31, 1999, the Washington Waterjet Workers Association (WWWA) filed suit in King county (Seattle) superior court in Washington, challenging the state Department of Corrections (DOC) practice of allowing private businesses to employ prisoner labor. The defendants are Howard Yarbrough, administrator of the DOC's Division of Correctional Industries (CI), and Jet Holdings, Ltd., which is the business name of Microjet, and its owner, Kenneth Piel.

As reported in the March, 1997, issue of PLN, Microjet is a privately owned company based at the Washington State Reformatory in Monroe, Washington, which uses high pressure water cutting technology to cut and manufacture various hard materials, including stone, flatstocks, ceramics and alloys. Microjet's customers include big companies like Boeing, which sub contract work, but most of Microjet's customers are small local and regional companies.

The Washington DOC provides Microjet, and its other 14 private business partners, with rent free industrial manufacturing space, along with free water, sewage, heating, ventilation and trash removal and electricity at the reduced rate the DOC pays. Microjet currently gets about 11,000 square feet of industrial space at WSR and another 1,000 square feet of warehouse space at the prison for free.

The lawsuit, filed by Microjet's business competitors who do not employ prison slave labor, claims that the Washington DOC's practice of allowing private businesses to employ prison slave labor violates Article II, section 29 of the Washington state constitution which prohibits the leasing of convict labor to private businesses. The plaintiffs claim that Article VII, section 9 also prohibits the leasing or provision of buildings by the state. The lawsuit further alleges that RCW 72.09.130, which allows for the employment of prisoners by private businesses, violates Article I, section 12 of the Washington state constitution which prohibits the enactment of laws granting special privileges or immunities not enjoyed by all citizens.

The suit claims that Microjet and the Washington DOC are also violating RCW 72.09.070 which requires that prisoners employed by private businesses be paid wages "comparable to the wage paid for work of a similar nature" outside the prison. [The DOC, however, has enacted WAC 137.80.020(4) which states that companies need only pay prisoners 60% of the comparable wage for similar work, or the minimum wage, whichever is greater.] Waterjet cutters outside prison start out earning $14.00 an hour, with benefits, while none of Microjet's prisoner workers was paid more than $8.65 before the suit was filed. The plaintiffs also claim that the state defendants give public funds, credit and buying power to their private business partners, in violation of the state constitution.

RCW 72.09.100(l) requires that prisoners be given meaningful employment to learn skills to earn a living upon release. The lawsuit claims that in the four years Microjet has operated, no prisoner has ever applied for a job in the water jet cutting business in Washington. (See accompanying article.)

The plaintiffs allege that the defendants are also violating state laws that require prison industries to invest only in programs that have a minimal impact on state businesses. The plaintiffs claim that this state of affairs constitutes an unfair business practice and, lastly, that the transport of goods made by Microjet in interstate commerce violates 18 U.S.C. § 1761.

As relief, the plaintiffs seek declaratory relief, triple damages, attorney fees and costs and an injunction prohibiting the ongoing violation of the plaintiffs' rights. See: Washington Water Jet Workers Association v. Yarbrough, King County Superior Court, case No. 99-2-20202-3SEA.

If the suit is successful it will end the employment of prisoners by private businesses in Washington state. The most obvious way to moot the suit would be for the proponents of slave labor to amend the state constitution to allow for convict leasing. This is what happened in California after the California supreme court held that leasing prisoner labor to private companies violated that state's prohibition on convict leasing. See: Pitts v. Reagan, 92 Cal. Rptr. 27 (1971). However, it is unlikely that all the constitutional issues raised in this lawsuit can be easily amended away.

Washington enacted its ban on convict leasing based on the dismal experiences of other states as well as local experiments with the practice. For a more complete description of the convict leasing system at the turn of the century see Alex Lichtenstein's Twice the Work of Free Labor and David Oshinsky's Worse than Slavery. Both books are available from PLN; see page 31 for ordering information.

To those who ask where organized labor is on this issue in Washington, the answer is that they are absent. While organized labor occasionally pays lip service to opposing prison slave labor they have done little to oppose the practice. When contacted over two years ago about filing a similar suit challenging prison slave labor in Washington, the State Labor Council and the Boeing Machinists Union said they were "interested" but not willing to do anything beyond that. One of Washington's leading labor law firms was willing to undertake the litigation for a nominal fee. Generally, businesses have done more to combat prison slave labor in recent decades than organized labor has, which may be why union membership is declining.

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Related legal case

WA Water Jet Workers Assoc. v. Yarbrough