AuthorArmstrong, Keith

INTRODUCTION I. THE GROWING NEED FOR REFORM II. FREEDOM OF ASSOCIATION FOR INCARCERATED WORKERS A. The History of Constitutional Litigation Regarding Incarcerated Worker Labor Unions B. Jones and its Chilling Effect on Prisoner Labor Unions. C. Prisoners' Union Litigation After Jones D. Contemporary Efforts at Prisoner Unionization: The Incarcerated Workers Organizing Committee and the Nationwide Prison Strike III. FEDERAL STATUTORY LABOR PROTECTIONS FOR INCARCERATED WORKERS A. The National Labor Relations Act B. Prisoners as Statutory Employees Under the FLSA IV. STATE PUBLIC SECTOR LABOR PROTECTIONS FOR INCARCERATED WORKERS A. State and Local-Level Collective Bargaining: Worth Another Look B. Public Employee Collective Bargaining Laws on the State Level: Challenges and Possibilities for Incarcerated C. State Labor Board Decisions on Incarcerated Workers CONCLUSION INTRODUCTION

Jones v. North Carolina Prisoners ' Labor Union, Inc. (1) seemed to signal a death-knell for labor organizing in the prison setting. (2) Writing for the Supreme Court, Justice Rehnquist held that a state's reasonable interest in maintaining security in a correctional facility outweighs the freedom of association of prisoners seeking to unionize. (3) In spite of this decision, associations of incarcerated workers have persevered over the past forty years. In August 2018, prison labor organizing gained national prominence when inmates in over seventeen states organized a major prison strike (4) in which participants called for "an immediate end to prison slavery." (5) Furthermore, they demanded that "[a]11 persons imprisoned in any place of detention ... be paid the prevailing wage in their state or territory for their labor." (6) The striking prisoners made a series of other concrete requests, including broad reforms to prison conditions. (7)

This Comment examines the current legal landscape for incarcerated worker organizing and posits that while constitutional arguments for prisoner labor unions are not currently a viable option, labor law may provide some protections. This premise follows in the footsteps of a recent article by Eric Fink (8) and a Note by Kara Goad. (9) Both authors have explored whether incarcerated worker unions might seek National Labor Relations Board (NLRB) certification as collective bargaining units. However, given that the vast majority of prisoners--and incarcerated workers--are held in state prisons and work directly for the prison or the state, they would not fall under the mandate of the NLRB. (10) As a result, incarcerated workers in such circumstances must look to state law in order to assert collective bargaining rights. By receiving recognition at the state level and then demonstrating that labor organizing in the prison setting is not a threat to prison security, incarcerated worker unions may be able to build a body of evidence that could one day challenge Justice Rehnquist's conclusion in Jones.

Part I of this Comment discusses why prisoner labor organizing is an especially important and timely issue for advocates of criminal justice reform, racial justice, and labor rights.

Part II explores the history of First Amendment freedom of association litigation surrounding incarcerated worker labor unions both before and after Jones and examines how the decision has impacted modern efforts to organize prison labor.

Part III examines the statutory protections that may apply to incarcerated workers under the NLRA. In order to unpack the threshold issue of whether prisoners are included in the statute's definition of "employee," this Comment reviews a number of cases brought by inmates under the Fair Labor Standards Act (FLSA), a statute with a similar definition of the term, which was passed contemporaneously with the NLRA.

Finally, Part IV analyzes the applicability of state statutes governing public employees' collective bargaining rights to incarcerated workers. Most recent scholarship on incarcerated worker labor organizing focuses on the viability of claims under the NLRA but acknowledges that even successful claims will only apply to a fraction of inmates who work in private industries. This Comment suggests that in order to build a successful movement and win protections for a larger number of incarcerated workers, those workers must seek recognition as public employees at the state level in states with robust collective bargaining statutes. To that end, this Comment identifies which states have public sector collective bargaining statutes that could conceivably include prisoners and examines past decisions by state employment relations boards that denied labor protections to prisoners. This will clarify the challenges that incarcerated worker labor unions may face and shed new light on how to confront them.


    Concerns about prison labor have become a central issue in national conversations around criminal justice. Shortly before the start of the 2018 prison strike, the California Department of Corrections and Rehabilitation tweeted, "Today, more than 2,000 volunteer inmate firefighters, including 58 youth offenders, are battling wildfire flames throughout CA. Inmate firefighters serve a vital role, clearing thick brush down to the bare soil to stop the fire's spread." (11) Further reporting revealed that these inmate firefighters were only paid two dollars per day, plus one dollar per hour, for this grueling and dangerous work. (12) During a harsh winter storm in Chicago, a photo posted to social media showing inmates shoveling snow "with no real winter gear" went viral. (13) The Cook County Sheriffs Office later issued a statement that the people in the photo had, in fact, been provided with insulated jumpsuits, gloves, hats, and boots, though they were still working outdoors in inhospitable conditions. (14) When Senator Kamala Harris announced her candidacy for the 2020 Democratic presidential nomination, journalists quickly uncovered a brief filed by the California Attorney General's office in 2014, then led by Harris, which argued against reducing California's prison population because it would shrink the state's pool of cheap labor. (15)

    Advocates for criminal justice reform have many reasons to be concerned about prison labor. First, incarcerated workers have few legal rights or labor protections possessed by their non-incarcerated counterparts. (16) As of 2016, approximately 188,400 people were incarcerated in federal prisons, and state prisons held another 1,228,800 individuals. (17) This puts a large number of people at risk of extreme exploitation. While the Department of Justice has not published its Census of State and Federal Correctional Facilities since 2005, the findings of that year's census show that nearly fifty-four percent of all inmates (state and federal) were held in facilities that operated work programs and that ninety-eight percent of federal inmates were held in facilities with work programs. (18) Federal law requires federal inmates to work if they are medically able, (19) and many states have similar policies. (20) Some states pay incarcerated workers for their labor, while others, such as Texas, which has the largest state prison population in the United States, do not. (21) Even where prisoners are paid, they "work under unusually intense conditions for unusually low wages." (22) This has led many to characterize prison labor as "modern-day slavery" (23) or as a form of "superexploitation." (24)

    Second, prison labor is an issue of racial justice. Prison labor in North America has its roots in seventeenth-century Pennsylvania and expanded over the course of the nineteenth century under the theory that labor could lead to moral reform, (25) but it took on strong racial undertones following the Civil War. (26) The Thirteenth Amendment, which abolished slavery, infamously created an exception in the case of prison labor: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." (27) As the post-war Reconstruction Era came to an abrupt end, many Southern states exploited this exception by enacting vagrancy statutes, which made it a criminal offense not to work. (28) These laws were selectively applied to African Americans, allowing a form of racial hierarchy and labor exploitation to continue after slavery's abolishment. (29)

    During the Jim Crow era, vagrancy laws expanded and labor conditions deteriorated as Southern states contracted out convicts to private entities. (30) In her landmark examination of mass incarceration, The New Jim Crow, Michelle Alexander writes, "Death rates were shockingly high, for the private contractors had no interest in the health and well-being of their laborers, unlike the earlier slave-owners who needed their slaves, at a minimum, to be healthy enough to survive hard labor." (31) The context of prison labor has changed over the years, but minorities remain overrepresented in the prison system, and as a result, in the prison labor pool. (32)

    Third, prison labor is--as the term suggests--a labor issue. Some contemporary progressive commentators argue that unions should take a proactive stance in support of incarcerated workers in the name of defending working class interests beyond the narrower interests of any individual union's members. (33) However, the historical relationship between incarcerated workers and labor unions has been much more fraught and complicated. There have been two primary reasons why labor unions have taken a stand against prison labor. At first, in the mid-nineteenth century, unions distanced themselves from prison labor because of "the need to preserve the dignity of free labor." (34) Later, unions objected to the "economic menace of prison labor" as prison industries became more profitable and posed a competitive threat to...

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