Emancipate the FLSA: Transform the Harsh Economic Reality of Working Inmates

Journal of Civil Rights & Economic Development, [Vol. 27:4 2015]

29 Pages Posted: 17 Apr 2015

See all articles by Patrice A. Fulcher

Patrice A. Fulcher

Maryland Office of The Public Defender

Date Written: 2015


Prisoner labor is a booming American industry. The 2.3 million people in the United States of America (“U.S.”) behind bars serve as human resources sustaining the Prison Industrial Complex. In a less economically depressed market, perhaps there would be national prison reform campaigns geared toward decreasing the prison population. But in today’s economic climate, the increase of U.S. inhabitants sentenced to prison has helped to quench the thirst for cheap, and in many instances, free laborers. Proponents of the use of inmate labor in the U.S. have argued that inmates should not be paid minimum wages because working for free is a part of the punishment for their crime. However, critics maintain that forcing inmates to work for free is the rebirth of chattel slavery.

In order to protect the rights of workers, Congress passed the Fair Labor Standards Act (“FLSA”) in 1938, which in part, established the national minimum wage requirement. Prison laborers were not specifically addressed in the FLSA because the Act was designed to protect the working blue-collar class and prevent unfair competition towards the end of the Great Depression. Yet recently, U.S. courts have been faced with the challenge of deciding whether inmate workers are covered under the FLSA. In determining whether working prisoners should be paid wages under the FLSA, courts decide whether prisoners are considered employees as contemplated by the Act; as an employee, wages are guaranteed. Some circuits categorically deny coverage to working inmates by saying they are not employees, whereas other circuits make their determination based on an economic realities test. Under this test, courts ascertain the economic reality of the situation by determining whether the prisoner stood in an employer-employee relationship with the entity for which he worked. This application of the economic realities test is not only a rigid formulation, but also undermines the basic purpose of the FLSA. Consequently, this Article argues that the economic realities test should not be utilized to determine whether working inmates are employees. The FLSA should categorically apply to all inmate laborers.

The Article first, traces the use of cheap labor from the early economic reliance on indentured servants and slaves, to prison laborers. Second, it discusses modern state and private prison labor system. Third, it explores the creation of the FLSA and the ambiguities with regard to prisoners. Fourth, it dissects the economic realities test and establishes its ineffectiveness as applied to prisoners. Finally, the Article calls for the application of the FLSA to all working inmates, leading to judicial uniformity, and the redistribution of wealth from the prisons to the working inmates thereby reducing recidivism.

Suggested Citation

Fulcher, Patrice, Emancipate the FLSA: Transform the Harsh Economic Reality of Working Inmates (2015). Journal of Civil Rights & Economic Development, [Vol. 27:4 2015], Available at SSRN: https://ssrn.com/abstract=2594107

Patrice Fulcher (Contact Author)

Maryland Office of The Public Defender ( email )

6 St. Paul Street
Suite 1400
Baltimore, MD 21202
United States

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