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Menocal v. GEO Group, CO, Labor Order, July 6, 2015

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Case 1:14-cv-02887-JLK Document 23 Filed 07/06/15 USDC Colorado Page 1 of 14

Judge John L. Kane
Civil Action No. 14-cv-02887-JLK
on their own behalf and on behalf of all others similarly situated,

Kane, J.
This matter comes before the Court on Defendant’s Motion to Dismiss (Doc. 11). For the
reasons that follow, the motion is GRANTED in part and DENIED in part.
Plaintiffs are current and former detainees at the Aurora Facility, a private, for-profit
immigration detention facility owned and operated by defendant GEO Group in Aurora, Colorado
under contract with the Federal government. Doc. 1 at p.1. Plaintiffs allege that detainees
participate in a “Voluntary Work Program” at the facility where they perform tasks such as
maintaining the on-site medical facility, doing laundry, preparing meals, and cleaning various

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parts of the facility for compensation of $1 per day. Doc. 1 ¶¶ 1, 28. Plaintiffs also allege that
each day, six randomly selected detainees (whether they participate in the Voluntary Work
Program or not) are required to clean the facility’s “pods” without compensation under threat of
solitary confinement. Doc. 1 ¶¶ 5-6. Plaintiffs bring three claims. First, Plaintiffs allege that the
Voluntary Work Program violates the Colorado Minimum Wage Order (“CMWO”) because
Plaintiffs are paid $1/day instead of the Colorado minimum wage. Doc. 1 at ¶¶ 40-52. Second,
Plaintiffs allege that forcing detainees to clean their living areas under threat of solitary
confinement violates the Trafficking Victims Protection Act’s (“TVPA”) prohibition on forced
labor. Doc. 1 at ¶¶ 69-85. Third, Plaintiffs allege that the Defendant was unjustly enriched
through the operation of the Voluntary Work Program. Doc. 1 at ¶¶ 101-107.
Defendant has moved to dismiss all three of Plaintiffs’ claims. First, Defendant argues
that it is not an “employer,” and that the detainees are not “employees,” within the meaning of the
CMWO. Doc. 11 at 5-11. Second, Defendant argues that the TVPA does not apply to
immigration detainees. Id. at 11-15. Finally, Defendant argues that Plaintiffs’ unjust enrichment
claim should be dismissed as duplicative of their claim for violation of the CMWO. Id. at 15. In
its reply brief, Defendant also asserts that Plaintiffs’ claims are barred by the government
contractor defense and are preempted by the McNamara-O’Hara Service Contract Act (“SCA”).
Doc. 18 at 5-8. Plaintiffs sought and were granted leave to file a sur-reply responding to these
additional arguments. See Doc. 21.
I. Whether the Parties Are Subject to the Colorado Minimum Wage Order
a. Whether Plaintiffs are Employees Under the CMWO


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The CMWO defines “employee” as “any person performing labor or services for the
benefit of an employer in which the employer may command when, where, and how much labor
or services shall be performed.” 7 Colo. Code Regs. 1103-1:2. Defendant argues that prisoners
are not “employees” under the Fair Labor Standards Act (“FLSA”), and that similarly the CMWO
was not intended to be extended to those working in government custody. Doc 11 at 7-11; see
Alvarado Guevara v. I.N.S., 902 F.2d 394, 396 (5th Cir. 1990) (finding that immigration detainees
did not qualify for protection under the FLSA because they were not “employees”). Defendants
also cite a March 31, 2012 Advisory Bulletin from the Colorado Department of Labor (“CDOL”),
which finds that inmates and prisoners are exempt from the CMWO and “are not employees
according to Colorado law.” See Doc. 11 Ex. D. Plaintiffs respond that the Advisory Bulletin
does not apply because plaintiffs are civil immigration detainees in a private detention facility,
and not prisoners in government custody. Doc. 15 at 19-22. Defendant argues that the reasoning
applied in Alvarado to conclude that prisoners are not employees under the FLSA applies here
because immigration detainees are housed by the government and do not require the minimum
wage to bring up their standard of living. Doc. 18 at 19-22.
I find the Plaintiffs are not “employees” under the CMWO. Although immigration
detainees appear to fall under the broad definition of “employee,” so do prisoners, and the CDOL
has found that the CMWO’s definition of “employee” should not apply to prisoners. In addition,
because immigration detainees, like prisoners, do not use their wages to provide for themselves,
the purposes of the CMWO are not served by including them in the definition of employee. See
C.R.S. § 8-6-104 (purpose of the minimum wage is to “supply the necessary cost of living and to
maintain the health of the workers”). Finally, the Fifth Circuit has held that immigration
detainees are not employees under the FLSA’s similarly broad definition (“any individual

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employed by an employer”) because the congressional motive for enacting the FLSA, like the
CMWO, was to protect the “standard of living” and “general well-being” of the worker in
American industry. Alvarado, 902 F.2d at 396.
b. Whether Defendant is an “employer” under the CMWO
The CMWO applies to employers and employees in four industries: (1) Retail and
Service; (2) Commercial Support Service; (3) Food and Beverage; and (4) Health and Medical. 7
Colo. Code Regs. 1103-1:1. Plaintiffs allege that Defendant is a “Health and Medical” employer,
a “Food and Beverage” employer, and a “Retail and Service” employer. Doc. 15 at 7-19.
Although it is not necessary to reach the question of whether the Defendant is an “employer”
under the CMWO because I have concluded that the Plaintiffs are not employees, each of these
definitions is analyzed below in order to have a complete record in the event of an appeal.
i. Health and Medical
The CMWO defines “Health and Medical” employers as:
[A]ny business or enterprise engaged in providing medical, dental, surgical or other health
services including but not limited to medical and dental offices, hospitals, home health
care, hospice care, nursing homes, and mental health centers, and includes any employee
who is engaged in the performance of work connected with or incidental to such business
or enterprise, including office personnel.
7 Colo. Code Regs. 1103-1:2(D). Plaintiffs allege that because of Defendant’s “on-site
medical facility,” which provides health services to the detainees and which is partly maintained
and operated by detainees, see Doc. 1 ¶¶ 1, 45, Defendant meets the definition of a “Health and
Medical” employer. Defendant responds that this definition should be read to reach only those
businesses that provide health or medical services to the general public. Doc. 11 at 7; see Salazar
v. Butterball, LLC, 644 F.3d 1130, 1144 (10th Cir. 2011) (interpreting the food and beverage
section of the CMWO to require that the food or beverage be sold “to the ultimate consumer”).

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Plaintiffs respond that the drafters knew how to include a requirement that the services be
provided to the “public,” as they did in the “Retail and Service” section of the same regulations,
and that private, for-profit hospitals not necessarily accessible to the general public are expressly
included in an opinion of the CDOL interpreting the “Health and Medical” provision. Doc. 15 at

Defendants reply that Plaintiff’s interpretation means that any business with any on-site

medical component would qualify under the CMWO, which is an absurd result, and that the
Tenth Circuit has read a requirement that “Food and Beverage” sales be to the “general public,”
even though that language does not appear in the section of the regulations defining “Food and
Beverage” employers. Doc. 18 at 15-19; Salazar, 644 F.3d at 1144.
I find that Defendant is not a “Health and Medical” employer under the CMWO. I agree
with Defendant that this section of the CMWO requires that the business at issue offer services in
some capacity to the general public. See Salazar, 644 F.3d at 1144. Defendant does not provide
any health or medical services to the general public, and the CDOL Advisory Bulletin 24(I) takes
the position that “state and government-operated hospitals are not covered by Colorado wage law
and the Wage Order.” See Doc. 15 at 12 n.10. I find that the medical facility at the Aurora
facility is more akin to a government operated hospital than a private business that provides health
care to the general public.
ii. Retail and Service
The CMWO also applies to Retail and Service industry employers, defined as:
Retail and Service: any business or enterprise that sells or offers for sale,
any service, commodity, article, good, real estate, wares, or merchandise to
the consuming public, and that generates 50% or more of its annual dollar
volume of business from such sales. The retail and service industry offers
goods or services that will not be made available for resale. It also includes
amusement and recreation, public accommodations, banks, credit unions,
savings and loans, and includes any employee who is engaged in the

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performance of work connected with or incidental to such business or
enterprise, including office personnel.
7 Colo. Code Regs. 1103-1:2(A). Defendant argues that it does not provide any services
to the “consuming public,” and that it is not like the other examples of retail and service industry
employers given, which do offer services to the public. Doc. 11 at 5-6. Plaintiffs respond that
Defendant “sells incarceration services to governmental customers.” Doc. 15 at 14. The
Plaintiffs also argue that the Retail and Service definition has been applied to businesses making
sales to other businesses, despite the language requiring sales “to the consuming public,” and that
the government is a “public consumer.” See Bowe v. SMC Elec. Products, Inc., 935 F.Supp.
1126, 1134 (D. Colo. 1996) (Kane, J.) (finding that business selling mining equipment to other
companies covered by previous version of CMWO language governing sales “to the consumer”).
Defendants respond that the ordinary definitions of “consumer” and “retail” do not include their
business and that Bowe involved a different version of the CMWO which used the language “to
the consumer,” as opposed to the current version which uses the language “to the consuming
public.” Doc. 18 at 11-13.
I find that Defendant is not a “Retail and Service” employer under the CMWO.
“Incarceration services” are completely unlike the other services given by example in the CMWO,
and I find that the meaning of “consuming public” does not include the federal government. See,
e.g., Doc. 18 at 12 n. 9 (citing various examples of statutory definitions of “consumer” as a
natural person).
iii. Food and Beverage
The Wage Order also applies to the Food and Beverage industry, defined as:
Food and Beverage: any business or enterprise that prepares and offers for
sale, food or beverages for consumption either on or off the premises. Such

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business or enterprise includes but is not limited to: restaurants, snack bars,
drinking establishments, catering services, fast-food businesses, country
clubs and any other business or establishment required to have a food or
liquor license or permit, and includes any employee who is engaged in the
performance of work connected with or incidental to such business or
enterprise, including office personnel.
7 Colo. Code Regs. 1103-1:2(C). Plaintiffs allege that detainees “prepared and served
detainee meals [and] assisted in preparing catered meals for law enforcement events sponsored by
[Defendant].” Doc 1 at p.2. Defendant argues that it is not a “Food and Beverage” employer
because under Salazar the examples should be read to narrow the definition to those businesses
that sell food directly to the consuming public. Doc. 11 at 6-7. Plaintiffs respond that Defendant
prepares and offers food for sale because the food prepared is purchased by the government and
served to detainees, and because food and beverages prepared on site are offered for sale at the
commissary and to entities conducting training at the facility. Doc. 15 at 16-19. In addition,
Plaintiffs argue that because Defendant’s contract with ICE requires an inspection by an external
inspector, Defendant is required to have a “food license or permit” as defined in the Wage order.
Id. at 17. Plaintiff also says Salazar turns on the distinction between direct sales and resale, and
not any requirement that food be sold to the “consuming public.” Id. at 18 n.14. Defendants
reply that Plaintiff’s interpretation would mean that any business with an on-site cafeteria would
be part of the food and beverage industry, an absurd result. Doc. 18 at 13-15.
I find that Defendant is not a “Food and Beverage” employer under the CMWO.
Defendant does not sell food to the consuming public and is unlike all the other examples given in
the CMWO. See Salazar, 644 F.3d at 1144.
2. Whether the TVPA applies to Plaintiffs


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Plaintiffs allege that by requiring detainees to clean their “pods” under threat of solitary
confinement, Defendant has violated the Trafficking Victims Protection Act (“TVPA”), which
provides a civil remedy against anyone who “knowingly provides or obtains the labor or services
of a person by . . . means of force, threats of force, physical restraint, or threats of physical
restraint.” 18 U.S.C. § 1589(a); see id. § 1595 (providing civil remedy). Defendants argue that
the TVPA is inapplicable because its purpose was to prevent human trafficking, and cases
exclusively apply the TVPA to trafficking persons for labor and/or sex. Doc. 11 at 12-13.
Defendants also argue that 18 U.S.C. § 1584, which appears in the same Title as § 1589
and prohibits “knowingly and willfully hold[ing any person] to involuntary servitude,” requires
that Plaintiffs’ TVPA claims be dismissed. In U.S. v. Kozminski, 487 U.S. 931 (1988), the
Supreme Court held that § 1584 reaches only compulsion of services by use of physical or legal,
as opposed to psychological, coercion. Id. at 948. In Channer v. Hall, 112 F.3d 214 (5th Cir.
1997), the Fifth Circuit held that an immigration detainee forced to work in the kitchen under
threat of solitary confinement was not subjected to involuntary servitude in violation of the
Thirteenth Amendment. See id. at 219 (“We hold that the federal government is entitled to
require a communal contribution by an INS detainee in the form of housekeeping tasks, and that
Channer's kitchen service, for which he was paid, did not violate the Thirteenth Amendment's
prohibition of involuntary servitude.”). Defendants argue that § 1589 should be interpreted
similarly to include a “civic duty” exception, because § 1589 appears in the same chapter as §
1584 and because both sections are meant to protect persons from trafficking. Doc. 18 at 25.
Plaintiffs respond that the plain text of the TVPA reaches any type of forced labor, citing
Nunag-Tanedo v. East Baton Rouge Parish School Bd., 790 F.Supp.2d 1134 (C.D. Cal. 2011),
which held that teaching high school math and science could qualify as forced labor under §

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1589(a). See id. at 1144-46; U.S. v. Kaufman, 546 F.3d 1242, 1263 (10th Cir. 2008) (finding that
the “involuntary servitude and forced labor statutes apply to coerced acts other than ‘work in an
economic sense’”). Plaintiffs also argue that § 1589 should not be interpreted similarly to § 1584
because Congress enacted § 1589 in order to broaden the narrow definition of coercion adopted
by the Supreme Court in Kozminski. See Kaufman, 546 F.3d at 1261 (“The legislative history
reveals that, in enacting § 1589, Congress sought to expand Kozminski's limited definition of
coercion under § 1584, stating that ‘[s]ection 1589 will provide federal prosecutors with the tools
to combat severe forms of worker exploitation that do not rise to the level of involuntary servitude
as defined in Kozminski.’”).1 Finally, Plaintiffs argue that the civic duty exception to the
Thirteenth Amendment discussed in Channer should not apply to private for-profit corporations
such as Defendant, although neither Plaintiffs nor Defendants have cited any authority discussing
whether the exception applies to private enterprises under contract with the government.
I deny Defendant’s motion to dismiss with respect to Plaintiffs’ TVPA claim. Both
Kozminski and Channer interpreted the term “involuntary servitude” (in § 1584 and in the
Thirteenth Amendment, respectively), whereas § 1589 reaches “whoever . . . obtains the labor or
services of a person by . . . threats of physical restraint.” The language at issue here is thus
broader than the language at issue in Kozminski and Channer, and intentionally so. See Kaufman,
546 F.3d at 1261. In addition, Defendants have cited no authority for reading a civic duty
exception into § 1589, or for applying such an exception to a private, for-profit corporation under


Plaintiffs also argue that the duties Plaintiffs were required to perform fall outside of the scope
of personal housekeeping obligation set forth in ICE’s own standards. See Doc. 15 at 30-31.
Defendants respond that the scope of the duties set out in ICE’s standards is simply irrelevant.
Doc. 18 at 26-27.

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contract with the government. Thus, for purposes of surviving a motion to dismiss, Plaintiffs’
TVPA claim will be allowed to go forward.
3. Whether Plaintiffs’ Unjust Enrichment Claim is Duplicative
Defendant argues that Plaintiffs’ unjust enrichment claim should be dismissed because
Plaintiffs have an adequate remedy at law, and because it is duplicative of their claims under the
CMWO. Doc. 11 at 15. Plaintiffs argue that because the measure of damages for unjust
enrichment is the difference between the value of Plaintiffs’ services and the amount paid, their
unjust enrichment claim is not duplicative. Doc. 15 at 34-35.
I will not dismiss Plaintiffs’ unjust enrichment claim. Although the claim appears to be
largely based on Plaintiffs’ CMWO claim and therefore Plaintiffs would have an adequate remedy
at law, the CMWO claim is dismissed and not available. In any event, Plaintiffs are permitted to
plead in the alternative. See Bolsa Resources, Inc. v. AGC Resource, Inc., No. 11–cv–01293,
2011 WL 6370409, *4 n.5 (D.Colo. Dec. 20, 2011) (allowing unjust enrichment claim to go
forward in the alternative on motion to dismiss).
Under their CMWO claim, Plaintiffs seek the minimum wage, whereas under their unjust
enrichment claim, Plaintiffs seek the fair value of their services. See Doc. 1 at ¶ 106 (asking that
defendant “disgorge . . . the benefits it has unjustly obtained”); id. at p. 20 (seeking
“compensatory and exemplary damages”); id. at ¶ 52 (seeking “unpaid minimum wages”); id. at
p. 18 (seeking “unpaid balance of the full amount of wages due”). To the extent Plaintiffs allege
that the fair market value of their services exceeds the minimum wage, the remedies sought by the
CMWO claim and the unjust enrichment claim are different, and the unjust enrichment claim is
not duplicative. See Bock v. American Growth Fund Sponsors, Inc., 904 P.2d 1381, 1387
(Colo.App. 1995) (proper measure of unjust enrichment is difference between consideration paid

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and fair market value of employee’s services); Edwards v. ZeniMax Media Inc., No. 12–cv–
00411, 2013 WL 5420933, *10 (D. Colo. Sep. 27, 2013) (denying motion to dismiss unjust
enrichment claim as duplicative where remedies sought were different).
4. Whether Plaintiffs’ Claims Are Preempted by the Service Contract Act
In its reply brief, Defendant argues that the McNamara-O’Hara Service Contract Act
(“SCA”), 41 U.S.C. § 6702 et seq., preempts the application of the Colorado Minimum Wage
Order. Doc. 18 at 7-8. The SCA applies to contracts to provide services to the United States that
exceed $2,500, and requires the payment of a minimum wage and fringe benefits to government
contractors. See 41 U.S.C. §§ 6702-6707. Defendant attaches its contract with the government
and the Department of Labor wage determination under the SCA, which determines the minimum
wage for all employees at Defendant’s Aurora facility. See Doc. 18 Exs. E,F. However, there is
no minimum wage for detainees as they are excluded from employment under the contract
because they are not U.S. citizens. See Doc. 18 at 7 n.6. Defendant argues that the SCA
completely occupies the field and leaves no room for application of Colorado’s minimum wage
law. Doc. 18 at 7-8.
Plaintiffs argue that the SCA does not expressly preempt state minimum wage laws, and in
fact quite the opposite. Specifically, the SCA requires service contracts to which it applies to
include a provision for fringe benefits “not otherwise required by Federal, State, or local law to be
provided by the contractor or subcontractor.” 41 U.S.C. § 6703(2); see also American Waste
Removal Co. v. Donovan, 748 F.2d 1406, 1410 (10th Cir. 1984) (“The [Service Contract] Act is
also intended to protect service contract competitors from unfair competition by employers
paying subminimum wages.”). This language “manifestly assumes the application of [state and]
local laws benefitting workers, and adds other provisions to insure that benefits and protections

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for contract employees reach a certain minimum.” Lebron Diaz v. General Sec. Services Corp.,
93 F.Supp.2d 129, 135-36 (D.Puerto Rico 2000). In addition, the Plaintiffs cite numerous cases
rejecting the argument that the SCA preempts state and local labor laws. See, e.g., Inkrote v.
Protection Strategies Inc., No. 3:09-CV-51, 2009 WL 3295042, *7 (N.D.W.Va. Oct. 13, 2009)
(rejecting argument that SCA completely preempts state law); Lebron Diaz, 93 F.Supp.2d at 13536 (similar); Naranjo v. Spectrum Sec. Services, Inc., 172 Cal.App.4th 654, 663-668 (Cal.App.
2009) (finding that SCA did not preempt claims for additional wages under the California Labor
Code); Doc. 21 at 9. Because enforcing Colorado’s minimum wage laws is consistent with the
purpose and the text of the SCA, I find that the SCA does not preempt Plaintiff’s claim under the
Colorado Minimum Wage Order.
4. Whether Plaintiffs’ Claims Are Barred by the Government Contractor Defense
The Defendant argues that Plaintiffs’ claims are barred by the government contractor
defense, because the government has directed Defendant to take the actions that form the basis of
the claim, i.e., establish a volunteer detainee work program and pay detainees $1/day. See Doc.
18 at 5-6. Under Boyle v. United Technologies Corp., 487 U.S. 500 (1988), the government
contractor defense precludes liability for state law tort claims regarding design defects where “(1)
the United States approved reasonably precise specifications; (2) the equipment conformed to
those specifications; and (3) the supplier warned the United States about the dangers in the use of
the equipment that were known to the supplier but not to the United States.” Id. at 512.
Defendants also cite language in Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 (2001)
suggesting that the logic of Boyle means that state law claims are barred where “the government
has directed [the defendant] to do the very thing that is the subject of the claim.” Id. at 74 n.6.


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The government contractor defense requires a “significant conflict” between an identifiable
“federal policy or interest and the [operation] of state law.” Boyle, 487 U.S. at 507.
The parties dispute whether this conflict requirement is satisfied, i.e., whether Defendant’s
contract with DHS/ICE prohibits Defendant from paying detainees more than $1/day. The
contract submitted by the Defendant provides a line item for “Stipend for Detainee Work
Program” and indicates that “Reimbursement for this line item will be at an actual cost of $1.00
per day per detainee. The contractor shall not exceed the quantity shown without prior approval
by the Contracting Officer.” Doc. 11-2 at p.21. The “quantity” amount has been redacted from
the version of the contract submitted by the Defendant. Id. The standards for the “Detainee
Voluntary Work Program” provide that “[d]etainees shall receive monetary compensation . . . in
accordance with the facility’s standard policy” and that “[t]he compensation is at least $1.00
(USD) per day.” Doc. 11-1 at p.5 (emphasis added). I find that Plaintiffs are correct that the
contract only defines how Defendant will be reimbursed for the Detainee Work Program and does
not prohibit Defendant from paying detainees in excess of $1/day in order to comply with
Colorado labor laws. In fact, the contract specifically contemplates that the Defendant will
perform under the contract in accordance with “[a]pplicable federal, state and local labor laws and
codes” Doc. 11-2 at p.43; and the contract is subject to the SCA, which assumes that wages and
benefits will be paid as “in accordance with prevailing rates in the locality” and as “required by
Federal, State, or local law,” see 41 U.S.C. § 6703(1) & (2). Therefore, I find that there is no
“significant conflict” between a federal interest and state law as required for the assertion of the
government contactor defense.


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For the reasons given above, Plaintiffs’ CMWO claims are dismissed, and Defendant’s
motion is denied with respect to Plaintiffs’ TVPA and unjust enrichment claims.

Dated: July 6, 2015

s/ John L. Kane
Senior U.S. District Judge