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California Unpaid Wages Lawsuit Goes to Jail

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Must For-Profit Prisons Pay Civil Immigrant Detainees?

San Diego, CAA year and a half ago, Sylvester Owino and Jonathan Gomez filed a California unpaid wages lawsuit against CoreCivic, a for-profit business that runs private prisons, including the Otay Mesa Detention Center in San Diego. The lawsuit alleges violations of federal human trafficking laws and California labor laws relating to minimum wage, overtime, and meal breaks, among other things. Discovery is expected to continue into March 2019, with a trial to follow.

There is a lot to unpack in these “slave labor” lawsuits -- everything from the horrors of the convict leasing system to immigration policy, to troubling reports that juveniles were used to fight California wildfires.

Meanwhile, Owino creeps slowly along through the Southern District of California. Many are watching as similar lawsuits spring up throughout the country. The lawsuit could mean a lot for private immigration prisons. It is also another reason to look at the role work plays in the criminal justice system.

Owino v. CoreCivic, Inc.

At the outset, it is important to note that Owino is a class action lawsuit, but the class is made up of individuals who are civil immigration detainees. They have not been convicted of crimes. This is unusual for a convict labor lawsuit.

Point two is that CoreCivic runs many such civil immigration detention facilities throughout the country. It’s a big business. In the first quarter of 2018, its total reported revenue was $440.9 million, up 45 percent from the prior year quarter. The decision in Owino could affect the basic business model of for-profit prisons.

The plaintiffs in this lawsuit claim that they were forced to clean, maintain and operate CoreCivic’s Otay Mesa facility. Some of this work seems to have been personal housekeeping, but other tasks go far beyond that. These include stripping and waxing the floors of the medical facility, cleaning the warehouse, preparing catered meals for law enforcement events, and maintaining the exterior landscaping of the facility. Some of this work was uncompensated; other tasks were paid for at the rate of a dollar a day. Funds earned through the “Dollar-A-Day Work” program could only be spent at the detention facility’s commissary – the company store.

Although participation in the “Dollar-A-Day” program was nominally voluntary, detainees who refused to work and other members of their living units were threatened with solitary confinement and other restrictions. In addition, both named plaintiffs claim that they were required to work in unsafe conditions. Mr. Owino specifically alleges that he was required to perform “Dollar-A-Day” work cleaning CoreCivic’s medical facility without personal protective equipment designed to protect him from infection.

What’s Wrong with Asking Prisoners to Work?

Many strands of American law, including the Thirteenth Amendment, prohibit forced labor “except as a punishment for crime whereof the party shall have been duly convicted.” In Owino there are no crimes.

The Complaint does not make a Thirteenth Amendment argument, but claims instead, that CoreCivic’s labor requirement violates the Federal Trafficking Victims Protection Act and the California Trafficking Victims Protection Act because of threats and actual exercise of force, physical restraint, serious physical harm, coercion, and abuse of legal process against those who refused to work. The threats of violence redounded to CoreCivic’s financial benefit. For context, it would be worth checking the definition of “extortion”.

In addition, the Complaint alleges that CoreCivic’s actions violate California’s Unfair Competition Law because the company had an unfair advantage with respect to labor costs. With respect to workers, CoreCivic violated provisions of the California Labor Code that require payment of the minimum wage, overtime, termination and waiting time penalties. It failed to provide meal periods, rest periods, and wage statements. It required detainees to sign statements accepting illegal terms of employment. The company also appears to have negligently failed to provide workers with safety gear.

It is abundantly clear that California labor and workplace protection laws apply to workers regardless of immigration status. The remaining question may be whether the detainees were volunteers. That will be a question of evidence for trial, but it seems a steep climb in the case of those involuntarily detained for immigration and/or deportation purposes.

CoreCivic’s business model appears to depend on free or nearly free labor. Not only was it free, it was largely unregulated. A decision for the plaintiffs would seem to require a change in that strategy.

What about the Other Convict Labor Cases?

A decision for the plaintiff in Owino might have immediate importance for other civil immigration detainees. CoreCivic and Geo Group are big corporate players in this arena. But much media attention has been focused lately on criminal detainees. What about them? What about the inmate firefighters, for example? This may require a deep dive into legal theories about crime and punishment. What is a sentence of work intended to achieve?

Punishment, rehabilitation or profit?

Those found guilty of civil offenses cannot be required to work as a form of punishment –no breaking rocks in the hot sun for traffic ticket. Depending on the application of other laws, though, a work assignment might be permissible as punishment for a crime. Involuntary labor may also be appropriate as a form of rehabilitation, although evidence about its effectiveness seems warranted. If inmate firefighters have no opportunity to work as firefighters outside of prison, was the work rehabilitative?

Work as a way of making the incarcerating facility profitable is another matter. As the Owino Complaint argues, this seems like a basic violation of the rules of fairness, both for the inmate workers and business competitors. The Thirteenth Amendment is never far away.


California Unpaid Wages Legal Help

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When prisons are privatized, the operators stand to maximize their profits through
(1) the highest possible incidence of crime,
(2) the widest possible definition of crime,
(3) the lowest possible standard of proof for obtaining convictions, assisted by the highest possible incidence of, and the weakest possible safeguards against, prosecutorial malpractice, and
(4) the longest possible sentences for persons so convicted of crimes so defined.

It might be said that even if the government runs the prisons, the employees of the prison system stand to gain in job security from a higher prison population. But in that case the employer — the government — has an incentive to *minimize* the prison population in order to minimize the cost to taxpayers. In contrast, when prisons are privatized, not only the employees but also the employers stand to gain from a higher prison population; and the employers will reinvest some of their taxpayer-funded profits in lobbying and campaigning, in order to grow at taxpayers' expense. And when the growth is in prisons, the threat to the taxpayers is not only to their hard-earned money, but also to their freedom and their good names.

Gavin R. Putland, .


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