“I didn’t go more than a month without a job,” said Guzman, who spent almost 20 months waiting, and working, inside Stewart while his immigration case was resolved.
In private prisons around the country, immigrants languishing in detention centers are being put to work by profit-making companies like the Corrections Corporation of America (CCA) for far below the minimum wage. For doing a range of manual labor in the facility, the immigrants, many of whom are not legally permitted to work in the United States, are paid between $1-$3 a day.
The Obama administration’s move away from the workplace raids of the Bush years and toward an increasing reliance on Secure Communities, which critics say has functioned as a dragnet for immigrants who have committed low-level crimes or none at all, has flooded detention centers across the country.
Between 1996 and 2011, deportations increased by 400 percent and the Department of Homeland Security now has a daily detention capacity of 34,000 beds. Along with this trend has come the widespread privatization of the federal detention centers.
Guzman was paid only $1 a day for cleaning communal areas in the detention center. When he moved to working in the kitchen – “an 8 hour job and you do get your full 30 minute break” – his pay shifted to $3 a day.
Most of the work in Stewart was done by detainees, said Guzman, who was placed into deportation proceedings when a letter about his asylum case was sent to the wrong address. “Ninety percent of the jobs in CCA are run by detainees,” he said of Stewart.
Immigrant rights advocates have called the voluntary work program another dehumanizing avenue for companies like CCA to profit from immigrants already in a vulnerable position.
“The whole nature of this program is problematic,” said Azadeh Shahshahani, director of the National Security/Immigrants’ Rights Project at the ACLU of Georgia. “At the end of the day, they are getting the detainees to work for a wage that is far below minimum wage and for the work that they would have had to hire personnel. Obviously they are deriving a profit whatever way you look at it.”
“The detainees need the money, the phone cards are expensive ... and the food that they get is not enough to sustain themselves,” said Shahshahani, editor of a “Prisoners of Profit” report about immigration detention centers in Georgia. “They really need the money to eke out somewhat of a normal existence.”
If undocumented workers, the people who pick America’s produce, mow its lawns, do its laundry, build its houses and cook in its restaurants, are not allowed to work legally in the United States, what are their labor protections when employed by a private detention company?
“Illegal” Workers Legalized in Detention
According to a Freedom of Information Act (FOIA) request filed by Jacqueline Stevens, a professor of political science at Northwestern University, detainees in detention centers work in five main areas – recreation, processing, housing units, main hallway/traverse areas and the library.
At the facilities reviewed in the documents – Florence Correctional Center in Florence, Arizona; El Centro Service Processing Center in El Centro, California; Stewart Detention Center and Varick Detention Center in New York City – the maximum wage under the voluntary work program was $1 a day.
“Detainees that participate in the volunteer work program are required to work according to an assigned work schedule and to participate in all work related training,” the response to the FOIA request noted. The maximum amount of work detainees were allowed to do was eight hours a day, 40 hours a week.
Immigration and Customs Enforcement (ICE) calls the voluntary work program “one method of managing detained aliens to give them an opportunity to be gainfully occupied on a voluntary basis.” The program also contributes to the deportation program’s “ability to successfully perform its detention mission.”
Is there a loophole that allows CCA to use undocumented labor at below minimum wage to help run their detention centers, and what are the immigrants’ rights as workers?
In response to the question above, a spokesperson at the Department of Labor directed questions about workers in immigration detention centers to ICE. ICE did not directly address the question of what their labor position was. Instead, ICE said that the workers were not employees:
“The Voluntary Work Program, under conditions of confinement, does not constitute employment and is done by detainees on a voluntary basis for a small stipend.”
But some advocates say that this legal gray area covers something more sinister. Stevens, the Northwestern professor, said the voluntary work program is consistent with slave labor: “Forced to work at wages they can’t negotiate and far below the wages Congress set.”
“In any other context,” she continued, “these private companies would be penalized for hiring people who don’t have legal documents and paying them below the federal minimum wage.”
The ICE spokesperson said a federally mandated precedent makes it legal for undocumented workers in detention centers to be paid. The average rate of pay for immigrants – $1 a day – was first set in the appropriations act for fiscal year 1979 and has held steady since. ICE considers the payment for work done by immigrants “allowances,” according to a section of the U.S. Code Classification tables, despite their undocumented status.
ICE Caps Its Payment for Detained Workers at $1
The amount ICE pays the contracting company for the immigrants it employs is capped at $1 even though “contract companies such as CCA may choose to provide a higher level of compensation.” At Stewart, CCA’s payment to Guzman of $3 a day for kitchen work makes it triple the ICE-mandated daily wage.
This payment was challenged in a 1990 lawsuit under the Fair Labor Standards Act, which “establishes minimum wage, overtime pay, recordkeeping and youth employment standards affecting employees in the private sector and in Federal, State and local governments,” and says that workers are entitled to a current minimum wage of $7.25 an hour.
In the lawsuit, 16 immigrants at a detention center in Texas sued the then-Immigration and Naturalization Services (INS), arguing that only being paid $1 a day violated the Fair Labor Standards Act.
The final ruling in the case by the U.S. Court of Appeals for the Fifth Circuit upheld INS’s right to pay detained workers only $1 a day. The court noted that “alien detainees are not government ‘employees’” and “the federal government usually authorizes the employment of aliens only under limited circumstances, none of which apply here.”
Therefore, the ruling said, the detainees couldn’t claim protection under the act because “alien detainees whose work is described by no statute authorizing use of taxpayers’ money to pay government employees cannot claim such status.” [See: Alvarado Guevara v. I.N.S., 902 F.2d 394 (5th Cir. 1990)].
There are several treaties that try to govern the use of labor in detention. One is the Inter-American Principles on Detention, cited in a 2012 report on private prisons by the ACLU of Georgia as saying: “All persons deprived of liberty shall have the right to work.”
“This includes the right ‘to receive a fair and equitable remuneration,’” the report noted.
Then there is the 13th Amendment, which has been used as a basis for the allowance of prison labor – with an aver-age pay that ranges from $0.93 a day to $1.25 an hour – though the fairness of this has also been challenged.
But Stevens noted that even within the context of a corrections environment, an immigration offense is a civil one, and therefore the detention should not be punitive.
“Detention centers are not legal punishment,” said Stevens. “They are for people who are trying to pursue their civil right to remain in the country.”
The Money Earned by Detainees Makes Its Way Back to CCA
Guzman said the work he did while detained at Stewart broke up the tedium of being locked up and the stress of dealing with his constantly delayed appeals. But he said there was another incentive to continue making the meager wage he was paid for working a 40-hour week in the kitchen.
“You would get paid once a week and it would go directly into your canteen money,” said Guzman. And with that “you bought food, a calling card, a bar of soap, shampoo, toothbrush” – from the CCA-run store inside the detention center.
Stevens said her research has shown that the primary reasons for detainees to take part in the voluntary work programs is “so that they can buy food and hygiene products. If they don’t have relatives on the outside to pump up their commissary accounts then they’ll buff floors.”
If some of the money being paid to undocumented workers taking part in the voluntary work program goes back to CCA, how much are private prison companies earning from these workers?
Companies like CCA are paid a lump sum by ICE for housing detainees – and then from whatever costs they can cut on food, labor or facilities, comes their profits. CCA, “the nation’s largest owner and operator of partnership correction and detention facilities and one of the largest prison operators in the United States, behind only the federal government and three states,” had net income of $31.7 million for the first quarter of 2012.
“The colossal ‘savings’ from paying people a small fraction of the legal wage makes possible these centers,” wrote Stevens in a blog post on the voluntary work program in private detention centers. “How much exactly is being saved?”
According to Stevens’ analysis of figures in her FOIA requests, the monthly payments from just one detention center break down like this:
“Each dollar is a day’s payment’s to one detainee, so July 2009 at 5,815 = 5815 individual days or shifts of labor. Not all of the shifts are 8 hours but they go up to that. If the range of hours worked for this example is 4-8 hours [a] day, then the payments that should have been made for July 2009 under federal minimum wage laws would be $168,635 to $337,000. Again, what actually was paid was $5,815.”
“In brief,” said Stevens, “the ICE jails are paying people $1/day for work that minimum wage laws would require compensated at $29-$58/day.”
This is only a small window on the earnings from this program. Among the questions CCA declined to answer, despite repeated requests for comment over a period of several weeks, was how widespread the voluntary work program was and how many immigrants were involved in it nationally.
ICE and CCA descriptions of the program stress the term “voluntary,” but a recently released ACLU report shows otherwise, detailing instances of detained immigrants being forced to work at Stewart Detention Center:
“Omar Ponce was subjected to disciplinary action for refusing to work and for organizing a work strike in 2010. He was in the segregation unit for a week before he had his disciplinary review hearing. Another detainee was threatened with segregation if he refused to work less than eight hours per day. This is not atypical.
In response, CCA representative Mike Machak said: “The incident described in the ACLU report was reported to CCA staff, was dealt with appropriately and was reported to ICE in accordance with detention standards and contract requirements.”
Oversight, said Machak, is provided by “our longstanding government partner [ICE], including on-site ICE staff.”
Critics of private detention like Bob Libal, a Texas organizer for Grassroots Leadership focusing on the expansion of the private federal detention system, stress the unfairness of people criminalized as workers detained and then made to work.
“I think it’s pretty disturbing that private prison corporations are padding their bottom line by exploiting undocumented labor in their facilities,” said Libal, “when it would be much more humane and beneficial for the sort of country as a whole to allow people to live and work outside of detention facilities while their immigration cases are processed.”
It’s an irony not lost on Guzman. “You will boot them out of the country because they don’t have papers to work in the U.S.,” he said when asked about the issue, “but then you give them a job and you underpay them. Why are you underpaying them?”
This article originally appeared on Truthout on July 27, 2012; it is reprinted with permission, with minor corrections by PLN. Copyright, www.truthout.org.
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Related legal case
Alvarado Guevara v. I.N.S.
|Cite||902 F.2d 394 (5th Cir. 1990)|
|Level||Court of Appeals|