Listen: Prison Wages Debate Evolving With Petitions Pending

The debate regarding whether incarcerated people who perform work are employees and thus entitled to federal wage and hour protections is continuing to develop.

The U.S. Supreme Court in April declined to review a Fourth Circuit panel decision that paved the way for a potential finding that incarcerated workers in some circumstances can be employees under the Fair Labor Standards Act, but other petitions remain pending.

The justices are still considering a certiorari petition by the GEO Group, which is seeking to undo a Tenth Circuit panel decision that the private prison operator was too quick to appeal a ruling that it lacked sovereign immunity from immigrant detainees' claims.

And in the Ninth Circuit, the GEO Group has filed a rehearing petition in consolidated cases after a split panel affirmed a $23 million win in another case involving immigrant detainees.

While federal courts had previously found that workers behind bars were not employees, "courts are increasingly skeptical," said D. Michael Hancock of Cohen Milstein Sellers & Toll PLLC, who has represented such workers. "At some point, this issue's going to have to make its way to the Supreme Court and get decided once and for all."

To hear more from Hancock, and the defense argument, listen to Law360 Explores: Subminimum Wage Part 2.

--Additional reporting by Daniela Porat and Britain Eakin.

Workers Behind Bars is a special series from Law360 exploring the push to end subminimum wages and forced labor for detained and incarcerated workers and the labor laws central to this dispute. Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

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