Labor Law Doesn’t Apply If You’re in Prison

Sessi Kuwabara Blanchard March 28, 2019


It should have been a straight­for­ward case: In 2015, Kendall Charles Alexan­der, Sr., an African-Amer­i­can man who was incar­cer­at­ed in New Jer­sey, filed a law­suit, Alexan­der v. Ortiz, alleg­ing that his fed­er­al work­place super­vi­sor vio­lat­ed his con­sti­tu­tion­al rights by dis­crim­i­nat­ing against him on the basis of his race. Yet, in March 2018, New Jer­sey Dis­trict Court Judge Jerome B. Siman­dle found Alexan­der to be inel­i­gi­ble for equal pro­tec­tion under the Fifth Amendment’s due process clause.

That’s because Alexan­der was a work­er at a tex­tile fac­to­ry run by UNI­COR, the U.S. gov­ern­ment cor­po­ra­tion that admin­is­ters an inmate labor pro­gram” in fed­er­al pris­ons. While he was incar­cer­at­ed at Fed­er­al Cor­rec­tion­al Insti­tu­tion (FCI), Fort Dix, a low-secu­ri­ty facil­i­ty just out­side of Tren­ton, New Jer­sey, Alexan­der would learn that peo­ple like him, work­ing for any­thing from 23 cents to $1.15 an hour, are not enti­tled to the same pro­tec­tions as peo­ple on the out­side. On paper, Siman­dle dis­missed the case on the basis that it con­flict­ed with a Supreme Court prece­dent. But the judge’s rea­son­ing boiled down to the argu­ment that pris­on­ers are not employ­ees,” and there­fore are not enti­tled to key pro­tec­tions from dis­crim­i­na­tion and retaliation.

Alexan­der — still incar­cer­at­ed, now at a North Car­oli­na facil­i­ty — fixed sewing machines at the Fort Dix fac­to­ry for 46 cents per hour in 2013. He writes to In These Times, As a very skilled mechan­ic, my day-to-day work was satisfying.” 

In an amend­ed com­plaint, updat­ed in August 2016, Alexan­der alleged that the fac­to­ry man­ag­er at the time, Robert Ortiz, was moti­vat­ed by racial bias when he kept Alexander’s wages at the same rate — 46 cents an hour — for sev­en months, from August 2013 to March 2014. Alexan­der had been hired because of his advanced skills and pre­vi­ous UNI­COR work expe­ri­ence — which also meant that his pay grade should have been accel­er­at­ed every thir­ty (30) days,” writes his pro bono lawyer, Sharon King, in the amend­ed com­plaint. Instead, Ortiz alleged­ly gave pro­mo­tions to white and His­pan­ic work­ers over Alexan­der, the com­plaint charges.

The fac­to­ry man­ag­er also alleged­ly denied Alexan­der over­time after he filed a griev­ance in April 2014 regard­ing Ortiz’s alleged fail­ure to accel­er­ate his pay grade. (Alexan­der was even­tu­al­ly pro­mot­ed to 69 cents an hour in March 2014.) Accord­ing to over­time records sub­mit­ted to the court by cur­rent Fort Dix fac­to­ry man­ag­er David Fen­tress, five His­pan­ic work­ers col­lec­tive­ly worked 842.5 hours of over­time, while six white work­ers had 425.5 hours. Four black work­ers worked 59.25 over­time hours.

After his pay was reduced due to an unau­tho­rized absence, Alexan­der decid­ed to quit his posi­tion in Octo­ber 2014.

Alexander’s amend­ed com­plaint request­ed mon­e­tary relief that account­ed for back pay, puni­tive dam­ages and men­tal and emo­tion­al dis­tress. The com­plaint states that Alexan­der hopes and prays that this Hon­or­able court grants the relief he seeks for the Defen­dan­t’s vio­la­tion of Plain­tiff’s Con­sti­tu­tion­al Rights.”

In a brief filed by his lawyer, Ortiz claims Alexan­der was pro­mot­ed by one pay grade over the span of 15 months, a rate that was fair­ly stan­dard with­in his group.” He adds that Alexan­der was not receiv­ing over­time oppor­tu­ni­ties even before he filed the first of his sev­er­al admin­is­tra­tive griev­ances.” Ortiz rejects the charge that Alexander’s lack of over­time hours con­sti­tut­ed dis­crim­i­na­tion and claims it was a con­tin­u­a­tion of the cir­cum­stances that had already been in place.”

Alexan­der was nev­er able to make his case in court – and chal­lenge Ortiz’s claims. The judge would not let the case pro­ceed to a tri­al, deter­min­ing Alexan­der was a pris­on­er and there­fore not enti­tled to work in a non-dis­crim­i­na­to­ry workplace.

Judge Simandle’s rul­ing was par­tial­ly informed by the The Prison Lit­i­ga­tion Reform Act, a law that makes it near­ly impos­si­ble to sue pris­ons due to its require­ment that incar­cer­at­ed peo­ple exhaust admin­is­tra­tive reme­dies.” Alexan­der notes such admin­is­tra­tive paths are not viable. Any time that you begin the admin­is­tra­tive rem­e­dy process, you can expect some form of road block,” Alexan­der writes, and a lot of peo­ple just say, For­get it.’ I’m not one of those people.”

The Court’s adju­di­ca­tion of Alexan­der was guid­ed by a key 1971 Supreme Court rul­ing that has pro­vid­ed one of the few means to hold fed­er­al employ­ees, like Ortiz, account­able for con­sti­tu­tion­al vio­la­tions. Bivens v. Six Unknown Named Agents found that a plain­tiff expe­ri­enc­ing an unlaw­ful search and seizure by fed­er­al offi­cers has a right to dam­ages. In the years fol­low­ing the rul­ing, the plain­tiffs who sought to bring a claim under Bivens, like Alexan­der, were required to prove that a con­sti­tu­tion­al­ly pro­tect­ed right — orig­i­nal­ly per­tain­ing to the Fourth Amend­ment — was vio­lat­ed by a fed­er­al employ­ee in order to receive damages

Bivens claims have been suc­cess­ful­ly applied in two oth­er sit­u­a­tions: one regard­ing vio­la­tions of the Fifth Amendment’s pro­tec­tion against gen­der dis­crim­i­na­tion, and anoth­er con­cern­ing the Eighth Amendment’s restric­tion on cru­el and unusu­al pun­ish­ment. Yet, Judge Siman­dle found that Alexander’s case — cen­tered on the equal pro­tec­tion guar­an­teed by the Fifth Amend­ment — was not one of them.

That’s because, in the mid­dle of the Alexan­der lit­i­ga­tion, the Supreme Court decid­ed in the 2017 case, Ziglar v. Abbasi, that judges should hes­i­tate” when apply­ing Bivens to con­texts that are dif­fer­ent in a mean­ing­ful way” from the past three ones if there are spe­cial fac­tors” for consideration.

The fac­tu­al evi­dence of the Alexan­der case was not a per­fect match with the approved Bivens con­texts. The 1980 Supreme Court case, Carl­son v. Green, approved Eighth Amend­ment vio­la­tions for Bivens claims. The com­plainant was a fed­er­al­ly incar­cer­at­ed man, like Alexan­der. But for Siman­dle, Carl­son was not applic­a­ble. The 1980 case con­cerned the right to med­ical care and free­dom from cru­el and unusu­al pun­ish­ment — not a prison labor pro­gram and equal pro­tec­tion, as in the case of Alexan­der.

The oth­er case that suc­cess­ful­ly used Bivens, titled Davis v. Pass­man, involved work­place dis­crim­i­na­tion and an alleged Fifth Amend­ment vio­la­tion. This prece­dent should apply to Alexander’s claim, the amend­ed com­plaint argues.

But Judge Siman­dle still con­sid­ered Alexan­der to be mean­ing­ful­ly dif­fer­ent” from the 1979 Fifth Cir­cuit Court of Appeals case that end­ed up award­ing dam­ages to a female sec­re­tary who was ter­mi­nat­ed by a con­gress­man on the basis of gen­der. It came down to one dis­tinc­tion between the sit­u­a­tions of Davis and Alexan­der. A sec­re­tary work­ing for a con­gress­man is clas­si­fied as an employ­ee — but an incar­cer­at­ed per­son labor­ing for UNI­COR is not.

A pris­on­er who works for UNI­COR is not con­sid­ered an employ­ee because UNI­COR sees them as being reha­bil­i­tat­ed,’” says King, refer­ring to fed­er­al reg­u­la­tion code that stip­u­lates UNI­COR will allow inmates the oppor­tu­ni­ty to acquire the knowl­edge, skills, and work habits which will be use­ful when released from the institution.”

The denial of UNI­COR work­ers’ sta­tus as employ­ees has been assert­ed in past legal cas­es. In 1997, the fed­er­al court of appeals for the Ninth Cir­cuit ruled that, since prison work­ers are not employ­ees,” they are not enti­tled to pro­tec­tion from retaliation.

Accord­ing to the final opin­ion giv­en, as an incar­cer­at­ed per­son with a UNI­COR work assign­ment, and not sim­ply an employ­ee,” Alexan­der is exclud­ed from many extant labor laws, includ­ing: Title VII of the Civ­il Rights Act of 1964, the Fair Labor Stan­dards Act, the Equal Pay Act, the Nation­al Labor Rela­tions Act and the Fed­er­al Tort Claims Act.

Siman­dle acknowl­edges that Alexan­der lacks an alter­na­tive rem­e­dy for dam­ages,” which is required, per the Ziglar rul­ing, to deny a Bivens claim. But Siman­dle con­cludes that the judi­cia­ry can­not decide how the UNI­COR work envi­ron­ment ought to be reg­u­lat­ed. Instead, he assigns the respon­si­bil­i­ty to the leg­isla­tive and exec­u­tive branches.

Had Con­gress intend­ed to include a mon­e­tary rem­e­dy against fed­er­al offi­cers or employ­ees for those sorts of claims in the UNI­COR imple­ment­ing statutes, it would have so stat­ed,” writes Siman­dle. For Siman­dle, the exten­sion of Bivens to the prison work­place should be left to those branch­es [like Con­gress] to deter­mine whether an action for dam­ages for claims of racial dis­crim­i­na­tion and retal­i­a­tion exists.”

Paul Wright, a for­mer­ly-incar­cer­at­ed writer and activist who is the edi­tor of Prison Legal News and the founder of the Human Rights Defense Cen­ter, told In These Times he dis­agrees with Siman­dle on both fronts.

That is the key thing: If the judge want­ed to grant relief, at least for the dam­ages … he had a vehi­cle to do so, but he chose not to,” says Wright. And that’s the problem.”

King is dis­ap­point­ed with the out­come of the case. It’s unfor­tu­nate,” she says. I think it says, mov­ing for­ward, that fed­er­al offi­cials with­in a prison con­text can essen­tial­ly dis­crim­i­nate with­out giv­ing an account.”

Dis­trict courts, like the one adju­di­cat­ing Alexan­der, don’t have bind­ing prece­dent, so the broad­er con­se­quences of Judge Simandle’s opin­ion remain inde­ter­mi­nate. But the adju­di­ca­tion of the case clar­i­fies lack of recourse for incar­cer­at­ed peo­ple who already work prac­ti­cal­ly for free. King says that the pay Alexan­der and oth­er pris­on­ers were paid was so low she con­sid­ers it to be almost slave wages.”

Nev­er­the­less, Alexan­der want­ed to con­tin­ue work­ing at the Fort Dix fac­to­ry. Prison life is extreme­ly expen­sive,” Alexan­der writes. Pris­on­ers are finan­cial­ly oblig­at­ed to pay court costs, fines and resti­tu­tions. Pris­on­ers pay high rates for phone calls, emails, over the counter med­ica­tions and hygiene items.”

After leav­ing UNI­COR,” Alexan­der writes, I became less self-suf­fi­cient and had to resort to fam­i­ly finan­cial assis­tance or face loss of privileges.”

Wright notes, These days, peo­ple under­es­ti­mate the amount of mon­ey that it takes to be a poor per­son in prison.” Accord­ing to a report by the Prison Pol­i­cy Ini­tia­tive, aver­age pris­on­ers in Illi­nois, Wash­ing­ton, and Mass­a­chu­setts spent $947 per year on com­mis­sary expens­es, which far exceeds the typ­i­cal amount a per­son earns per year work­ing a prison job.

Ulti­mate­ly, the out­come of the case rais­es trou­bling ques­tions about the sta­tus of incar­cer­at­ed peo­ple. If we are not employ­ees, then what are we?” Alexan­der wrote in the wake of the ruling.

He answered his own ques­tion: Slaves.”

Ses­si Kuwabara Blan­chard is a free­lance jour­nal­ist report­ing on carcer­al insti­tu­tions, pol­i­tics and cul­tures. She is also a staff writer at Fil­ter, a new online pub­li­ca­tion cov­er­ing drug pol­i­cy and harm reduc­tion. Fol­low her on Twit­ter @SessiBlanchard.
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