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Prison Pay: Why Closing the ‘Slavery Loophole’ Isn’t Enough


July 16, 2021

A new resolution in Congress seeks to abolish the 13th Amendment’s so-called slavery loophole allowing people convicted of a crime to work for little or no pay. But current litigation over carceral subminimum wages shows that eliminating the clause might not be enough to boost wage protections, experts say.

Introduced by Rep. Nikema Williams, D-Ga., and Sen. Jeff Merkley, D-Ore., in June, the resolution proposes to amend the U.S. Constitution by adding the phrase “neither slavery nor involuntary servitude may be imposed as a punishment for a crime.”

“We can’t celebrate Juneteenth as a federal holiday on one end of the spectrum and still have in our Constitution of the United States of America an exception that allows for slavery for people who have been convicted of crime,” Williams told Law360 recently.

People incarcerated for criminal offenses who work in facilities’ maintenance or in state correctional industries to make goods, like eyeglass lenses or license plates, are not constitutionally entitled to minimum wage. This arrangement is a vestige of the 13th Amendment’s abolition of slavery and “involuntary servitude” save for “as a punishment for crime whereof the party shall have been duly convicted.”

But circuit courts have also repeatedly ruled that the custodial relationship between an incarcerated person and their imprisoner/boss does not constitute an employee-employer relationship under the Fair Labor Standards Act.

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Abolition Amendment’s Impact is Hard to Predict

It is unclear what immediate impact the abolition of the 13th Amendment’s exclusionary clause would have on incarcerated workers’ rights.

If such a constitutional amendment were enacted, further action might not be needed, said D. Michael Hancock, of counsel at Cohen Milstein Sellers & Toll PLLC and a former assistant administrator in the Wage and Hour Division of the U.S. Department of Labor. But it would be “prudent” to make clear that criminal detainees are covered by the FLSA through a statutory amendment, for example, he said.

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‘Distorting’ the FLSA

The crux of incarcerated workers’ failed efforts to secure pay for hours worked comes down to the idea that inmates’ particular circumstances — they are in custody, their basic needs are met, and they are not part of the free labor market — negate the kind of employee-employer relationship envisioned by Congress under the FLSA.

Litigation involving civil immigration detainees in privately run facilities has wrestled with this recently. These individuals, unlike their criminal detention counterparts, are free from the13th Amendment’s exclusionary clause.

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Still, courts have determined that detainees are not covered by the FLSA “without any clear reason or any clear articulation,” Hancock said.

“I think it’s useful to bear in mind there’s no specific exemption in the FLSA that could plausibly extend to civil detainees, and one of the core principles of the FLSA is unless you’re specifically exempt then you’re covered,” he said.

The courts have bypassed that idea by saying, “We don’t have to get to exemptions because you’re just not part of that universe of people that the act was intended to protect,” he added.

Hancock also said that by concluding civil detainees have their basic needs met and are not entitled to wage protections, the courts are “distorting the whole framework of the Fair Labor Standards Act.” 

“If you’re going to go down that road, then in every wage and hour investigation, you’re going to have to ask if this person wasn’t being paid by their employer, would they otherwise have the basic necessities of life provided?” he said.

Read Prison Pay: Why Closing the ‘Slavery Loophole’ Isn’t Enough.