The voluntary work program: expanding labor laws to protect detained immigrant workers.

• Author: Garfinkel, Seth H.

CONTENTS INTRODUCTION I. THE VOLUNTARY WORK PROGRAM: LEGISLATIVE EVOLUTION AND INDUSTRY ADOPTION A. The Codification of the "Dollar-a-Day" Provision B. Implementing the Voluntary Work Program II. THE GROWTH AND PRIVATIZATION OF IMMIGRANT DETENTION A. Immigration Enforcement and Reliance on Immigrant Detention 1. Mandatory Detention Under the Immigration and Nationality Act 2. Immigrant Detention Quotas and the "Bed Mandate" B. The Privatization of Immigrant Detention Centers and the Boom of the For-Profit Prison Industry 1. The Main Players: GEO Group and the Corrections Corporation of America 2. The For-Profit Prison Industry as a Special Interest Group III. IMMIGRATION AT THE INTERSECTION OF LABOR LAW A. Fair Labor Standards Act of 1938 B. Immigration Reform and Control Act of 1986 IV. REDEFINING THE CLASSIFICATION OF IMMIGRANT DETENTION A. Rejecting the "Immigrants-as-Prisoners" Framework 1. The Flawed Comparison Between Prison Labor and the Voluntary Work Program 2. Moving Past Alvarado Guevara as the Determinative Authority over Detained Immigrant Workers B. Alternative Classifications 1. Applying the Patient-Worker Analysis 2. Applying the Live-in Domestic Service Worker Analysis C. Revisiting the "Economic Realities" Test CONCLUSION INTRODUCTION

Every day, approximately 5,500 detained immigrant workers pick up mops, brooms, pots, pans, spatulas, shovels, jackhammers, and hair trimmers to take part in the "Voluntary Work Program" (1)--a detention center program that provides detained immigrants with "opportunities to work and earn money while confined." (2) This program, marketed to the public as a way to reduce the "negative impact of confinement," (3) serves a dual purpose: to undercut the American labor market and bolster profits within the private prison industry.

Although Congress may determine the compensation rate for the Voluntary Work Program "from time to time," the pay scale for detained immigrant workers has remained the same since its codification in the 1978 Appropriations Act. (4) This antiquated piece of legislation permits payment at rates as low as [dollar]1.00 a day. (5) As such, immigrant detention centers may compensate workers at [dollar]0.13 an hour for as many as eight working hours a day--a cost-saving mechanism that many detention centers welcome. Rather than employ workers from the American workforce, who would require minimum wage payments of at least [dollar]7.25 per hour, (6) detention centers use the Voluntary Work Program to save approximately [dollar]40 million a year on labor costs. (7) This Note examines the Voluntary Work Program in for-profit detention centers across the country. (8) It argues that the Voluntary Work Program violates contemporary labor laws, which emphatically prohibit employers from hiring undocumented immigrants. Ultimately, this Note proposes that detained immigrant workers qualify as "employees" under the Fair Labor Standards Act (FLSA) and are entitled to its protections.

Part I of this Note presents the creation and implementation of the Voluntary Work Program in immigrant detention centers. Part II explores the ways immigrant detention centers benefit from cheap labor through the Voluntary Work Program. It also explores the private prison industry's attempts to influence U.S. immigration policy to maintain detention rates that fully staff the Voluntary Work Program. Part III considers labor laws--including the FLSA and the Immigration Reform and Control Act of 198G (IRCA)--that regulate the immigrant workforce and prohibit employers from engaging in unfair labor practices. Lastly, Part IV challenges the reasoning behind decisions to deny FLSA protections to detained immigrant workers. While courts have historically relied on an analogy between immigrant detainees and ordinary prisoners as the basis for their analysis, this Note proposes other analogies that more closely reflect the nuances of detained immigrant workers and serve as better comparators to determine employment status under the FLSA. Ultimately, this Note rejects comparisons between detained immigrants and ordinary prisoners. Instead, it encourages courts to apply the economic realities test to find that detained immigrant workers are "employees" under the FLSA and, therefore, are entitled to compensation at no less than the prevailing minimum wage.

1. THE VOLUNTARY WORK PROGRAM: LEGISLATIVE EVOLUTION AND INDUSTRY ADOPTION

   The Voluntary Work Program operates in immigrant detention centers across the country to support the "essential operations and services" of immigrant detention. (9) The government frames the program as a way to reduce the "negative impact of confinement ... through decreased idleness, improved morale and fewer disciplinary incidents." (10) But while the government presents the Voluntary Work Program as a benefit to detainees, the true beneficiaries are prison operators, who receive cheap labor to maintain immigrant detention facilities. (11) This in-house employment scheme allows detention facilities to avoid recruiting from the traditional labor market--thereby reducing operational costs and increasing industry profits. (12) In doing so, the Voluntary Work Program contributes to the substandard living conditions found in immigrant detention centers, (13) while padding the multi-million dollar pockets of the private prison industry. (14)

   1. The Codification of the "Dollar-a-Day" Provision

      The Voluntary Work Program is codified in Section 1555 of Title 8 of the United States Code, which provides that the Immigration and Naturalization Service (INS) may use its appropriations to provide "payment of allowances (at such rate as may be specified from time to time in the appropriation Act involved) to aliens, while held in custody under the immigration laws, for work performed." (15) Despite this statutory language that encourages--and, arguably, requires-Congress to review and revise payment allowances "from time to time," Congress has not adjusted the minimum rate of compensation in over thirty-five years, with the Appropriations Act of 1978 continuing to serve as the legal basis for the "dollar-a-day" provision, (16) and permitting "payment of allowances (at a rate not in excess of [dollar]1 per day) to aliens, while held in custody under the immigration laws, for work performed." (17)

      Based on this archaic piece of legislation, the private prison industry (as well as its government-operated associates) finds legal justification for compensating detainees with as little as [dollar]0.13 an hour. In fact, in defending its use of low-cost, labor under the Voluntary Work Program, the GEO Group, Inc., a leading corporation in the private prison industry, explained, "The voluntary work program at immigration facilities as well as the wage rates and standards associated with the program are set by the federal government." (18) As such, while Congress ignores its obligation to re-determine pay rates for the Voluntary Work Program, the GEO Group and other private prison operators may lawfully compensate detained immigrant workers at subminimum wages. (19)

   2. Implementing the Voluntary Work Program

      Without congressional oversight, Immigration and Customs Enforcement (ICE), the division of the Department of Homeland Security (DHS) responsible for enforcing immigration laws within the interior of the United States, maintains independent authority to define the character of the Voluntary Work Program. (20) ICE's Performance-Based National Detention Standards (PBNDS) provide agency guidance on the Voluntary Work Program and specifies the program's purpose, standards, and expected outcomes. (21) According to the most recent version of the PBNDS, "detainees who are physically and mentally able to work shall be provided the opportunity to participate in a voluntary work program." (22) Importantly, despite the use of binding language (e.g., "shall"), the PBNDS are unenforceable, (23) and detention facilities may decide whether or not to adopt the provisions. (24)

      In some respects, the PBNDS resemble an employee handbook, detailing selection criteria for the Voluntary Work Program, as well as safety precautions and prohibitions against discrimination. (25) In other respects, however, the PBNDS are vague and ambiguous, leaving detention centers free to shape the Voluntary Work Program in ways that benefit internal operations. Although the PBNDS do not specify the type of work that detainees perform under the Voluntary Work Program, they do differentiate the program's work assignments from those that are required of all detainees. (26) For instance, personal housekeeping requirements, expected of all detainees, consist of making beds, stacking loose papers, and keeping the floor free of debris. (27) ICE spokespersons emphasize that participants in the Voluntary Work Program perform work beyond personal housekeeping that directly contributes to institutional operations. (28)

      But without more detailed information from the individual detention facilities concerning the nature of the Voluntary Work Program, the actual character of the Voluntary Work Program relies on firsthand reports from inside the detention centers. At the Stewart Detention Center, an immigrant detention center in Lumpkin, Georgia, owned by Corrections Corporation of America with a capacity of 1,752 detainees, (29) detainees reported jobs including cleaning up cells, working in the kitchen, and performing barber services. (30) At the Denver Contract Detention Center, an immigrant detention facility in Aurora, Colorado, operated by the GEO Group, detainees explained that their duties involved waking up at 5:00 a.m. to serve meals, clean showers, give haircuts, and perform outdoor maintenance. (31)

      Of particular concern, some detainees report that the Voluntary Work Program is not truly "voluntary" and allege that they are victims of forced labor. (32) For instance, one detainee in the Steward Detention...