May 9, 2025
Despite a growing body of case law laying out a blueprint for determining whether incarcerated workers are employees — which would legally entitle them to minimum wage and other protections — there is no definitive way to classify workers behind bars.
Disputes over classification are common in employment law, where the question is often whether a worker is an employee or an independent contractor. Employees qualify for more rights and protections under the federal Fair Labor Standards Act and state laws, including minimum wage, overtime and meal breaks. But determining whether an incarcerated worker is an employee is a relatively newer challenge, and courts have a different set of facts and questions to consider.
Generally, at the heart of courts’ analyses mulling incarcerated workers’ classification under the FLSA and state wage laws is conviction status and the work’s purpose and location. But other questions are still open, including whether the facility’s ownership as public or private carries any weight.
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Here, Law360 looks at the patchwork of guidelines courts have laid out when considering incarcerated workers’ employment classification.
Different Conviction Status, Different Classification
There is one factor that courts have focused on more than others when determining if an incarcerated worker has rights under the FLSA: conviction status.
D. Michael Hancock of Cohen Milstein Sellers & Toll PLLC, who represented a group of U.S. Immigration and Customs Enforcement detainees in a wage case that landed in the Fourth Circuit, explained that people convicted of a crime who work within a prison’s walls are considered exempt from wage laws.
That’s because “the work that they perform is considered to be a form of punishment that is permissible” under the 13th Amendment of the U.S. Constitution, Hancock said.
The 13th Amendment, which abolished slavery after the Civil War, includes a so-called exception clause that allows for slavery and involuntary servitude as a punishment for a crime.
Hancock explained that courts have looked at civil detainees who have not been convicted of a crime, including ICE detainees, through a different lens and have taken a textual approach to the FLSA and state laws.
In a case in which Washington state sued private-prison colossus GEO Group and snagged a $23.2 million win for ICE detainees who received $1 per day for their service in a voluntary work program, the Ninth Circuit ruled that state minimum wage law didn’t have an exemption for “residents, inmates or patients in federally operated institutions.”
In a statement to Law360, GEO Group disputed the idea that its voluntary work program would lead to considering the detainees as employees, saying that “participation in the voluntary work program is, as the name states — strictly voluntary.”
“This program has been in place for decades and became part of the ICE performance-based standards under President Obama’s administration,” GEO said. “The wage rates associated with this federally mandated program are set by the United States Congress. As a service provider to the federal government, GEO is required to abide by these federally mandated standards and congressionally established guidelines.”
Courts are tackling cases similarly under the FLSA, which Hancock said is “riddled with specific exemptions” but doesn’t have a carveout “that says you are a civil detainee, therefore you don’t need to be paid.”
“So I think we’d lose the humanity sometimes that these are people. They’ve been convicted of nothing, and so they deserve the same kind of dignity and protection that we tend to almost every other worker in this country and need their work to be respected and to be properly acknowledged and paid,” Hancock said.
However, in one specific example involving pretrial detainees working at a California county jail, both the Ninth Circuit and the California Supreme Court added an extra wrinkle in the state when they ruled that the workers weren’t entitled to minimum wage and overtime because Penal Code Section 4019.3 applied.
Under that provision, the county was allowed to pay inmates a maximum of $2 for eight hours of labor in jail, and it should be interpreted broadly regardless of conviction status, the California justices said.
Work Location and Purpose Could Move the Needle
Two other factors courts look at to determine detainees’ classification is where the work is performed, and for what reason, Hancock said.
The Fourth Circuit, for instance, ruled in Scott that individuals in county detention could fall under the FLSA based on the purpose of their work. It also highlighted the fact that the work was done “outside the prison walls,” raising “the risk of unfair competition to other businesses.”
Read Key Question in Inmates’ Wage Fight: Are They Employees?.