Immigration detainees are bringing about a sea change in workers' rights behind bars, chipping away at the assumption that people in civil detention or in prison fall outside the reach of minimum wage laws and protections against forced labor.

In Washington state, a jury awarded more than $17 million to detainees who were paid $1 a day to clean the facility in which they were detained — concluding the workers were employees under state law and entitled to minimum wage. The Eleventh Circuit in another case found that private immigration detention facility operators could be found liable under the forced labor provisions of the federal Trafficking Victims Protection Act, or TVPA.

These and other developments in lawsuits across the country show how courts — in embracing textualist interpretations of minimum wage and forced labor statutes — are pushing back on the modus operandi of private detention center operators that contract with U.S. Immigration and Customs Enforcement.

Ryan Gustin, senior director of public affairs for private detention center operator CoreCivic, said that "any characterization of voluntary work programs in any of our facilities being anything other than voluntary, would be false and egregious," according to a statement provided to Law360.

"Our staff can maintain all facility services without volunteer workers, should no one opt to participate," he said. "We have worked in close partnership with ICE for over 40 years and will continue to provide a safe and humane environment to those entrusted to our care."

GEO Group similarly said it "strongly disagrees with and disputes the alleged violations of federal labor laws," according to a statement provided to Law360.

Andrew Free, who previously represented detainees in several cases, said that the labor rights of people in immigration detention "are clearer and more protective" than they were a decade ago.

"What we have is a body of case law that continues to develop that acknowledges the right to not be subjected to involuntary work and acknowledges the right to have just and fair pay in exchange for any labor that you perform," he said. "Those rights, I think, are ones that fly in the face of the entire economic model of immigration detention."




The Decisions That Moved the Needle

Cleaning up feces and dirty underwear. Picking hair out of shower drains. Doing laundry and preparing food for fellow detainees.

These are some of the tasks detainees performed for as little as $1 a day as part of the Voluntary Work Program at an ICE facility in Tacoma, Washington, run by GEO Group, according to testimony and other court documents.

So vital was this work to the facility's daily operations that in trial testimony GEO Group's then-chief financial officer said the facility would have had to hire about 85 full-time employees if they didn't have detainee labor.

Between 2010 and 2018, GEO Group's gross profit from managing the Tacoma facility was between $18.6 million and $23.5 million per year, according to court records.

Whether a worker is considered an employee under federal or state law is a critical threshold question — one that determines a worker's right to minimum wage, overtime pay and other benefits.

Under Washington's minimum wage law, for example, an "employee" is someone "employed by an employer," with specific exemptions, and "employ" means "to permit to work."

That broad definition applied to the detainees at the Tacoma facility, a jury found in October 2021, awarding class members more than $17 million in Nwauzor et al. v. GEO Group.

A Washington federal court also awarded the state $5.9 million in a connected unjust enrichment suit after finding that GEO Group "benefitted from detainee labor both operationally and financially" while paying $1 a day for that labor "as that work fulfilled core services that GEO agreed to perform under its contract with ICE and GEO was paid for," according to a memorandum issued by the district judge.

Courts are willing to acknowledge that private immigration detention operators are maximizing their profits with the labor of those they detain, said CJ Sandley, a senior staff attorney at the Center for Constitutional Rights.

"If that's the case, I think that that is making courts more willing to recognize that the people detained there have their own rights with regard to the labor that's being extracted from them," they said.

Under the Fair Labor Standards Act, "employ" means to "suffer or permit to work." Classification as an employee or independent contractor is generally a matter of a multifactor economic realities test.

The federal TVPA prohibits forced labor, defined as knowingly obtaining labor through abuse or explicit and implicit threats of harm.

Detainees in their suits against GEO Group and CoreCivic have argued that they are compelled to work because otherwise they face solitary confinement for refusing and can't afford to purchase food, personal hygiene products or phone cards to call their loved ones.

GEO Group said that participation in the voluntary work programs is "as the name states — strictly voluntary."

CoreCivic also maintains that their work programs are wholly voluntary.

"Detainees are subject to no disciplinary action whatsoever if they choose not to participate in the work program," Gustin said.

At an Aurora, Colorado, GEO Group facility, detainees said they were threatened with solitary confinement or criminal proceedings, among other disciplinary measures, if they did not abide by the Housing Unit Sanitation Policy, which required that detainees clean the common areas on a rotating basis.

In that case, Menocal v. GEO Group, the Tenth Circuit in 2018 upheld a Colorado district court's certification of classes of detainees from the Aurora facility for forced labor under the TVPA and unjust enrichment, an opinion the U.S. Supreme Court declined to review.


In Owino v. CoreCivic Inc. out of California, the Ninth Circuit not only upheld class certification of California minimum wage law and forced labor classes but also a nationwide forced labor class.

These certification rulings are important, Free said, because they show that forced labor claims can move forward on a class basis — there need not be an individual assessment of whether each member of the class worked because they were coerced.

"After we got class certified [in Menocal], they said it was a death-knell case because you could take a copy of this case and file it in any court in the country," Free said.

One decision in the Fourth Circuit may end up being an outlier.

In March 2021, the appellate court found in Ndambi et al. v. CoreCivic Inc. that people detained at an ICE facility were not employees of CoreCivic under the federal Fair Labor Standards Act, because the court said they did not need wages to cover their living expenses and they were not like workers in the free labor market.

"Put simply, 'There is too much control to classify the [detainer-detainee] relationship as one of employment,'" U.S. Circuit Judge J. Harvie Wilkinson III wrote in that decision, quoting a 1992 Seventh Circuit opinion in Vanskike v. Peters.

One of the primary factors courts look to in evaluating employee status is whether a person exercises control over the way the work is performed, said D. Michael Hancock, of counsel with Cohen Milstein Sellers & Toll PLLC and a former assistant administrator for the U.S. Department of Labor's Wage and Hour Division.

Hancock, who was part of the team representing the detainees in that case, said the Ndambi decision turned the notion of control in employee classification on its head.

"In finding that there was too much control, it's hard to square that with how the courts have historically looked at an employment relationship under the FLSA," he said. "It's almost this nonsensical position to take given how, historically, control has factored into FLSA coverage."

Courts have even acknowledged the potential for an employee-employer relationship when people behind bars work off-site for an entity besides their detainer.

The Third Circuit in February 2023, for example, revived the FLSA and Pennsylvania Minimum Wage Act claims, among others, of people who were in county prison and were paid $5 a day to sort trash — including animal remains, glass shards, feces, vomit and chemicals — that gave them so-called trash rash.

The workers, who were held in civil contempt and imprisoned for falling behind on child support payments, argued that Lackawanna County, the Lackawanna Recycling Center Inc. and the Lackawanna County Solid Waste Management Authority were their employers.

A Lackawanna County representative told Law360 that it is the county government's policy not to comment on pending litigation. County Solicitor Donald J. Frederickson said "the county vigorously will defend its interests in this matter."

The Lackawanna case is an example of how courts appear willing to entertain these types of claims, particularly when the workers have not been convicted of a crime and the work itself is performed outside the carceral context, said Juno Turner, the litigation director of Towards Justice who represents the plaintiffs in the Lackawanna case as well as in Menocal.

"People who operate or own detention facilities have been seeing how far they can push the idea that, broadly speaking, people who are detained or incarcerated don't have rights when it comes to the work they perform," Turner said. "I think that we're seeing some courts push back on that."
Sticking to the Letter of the Law

Textualism is an approach to statutory interpretation that focuses on analyzing the plain meaning of a law's words instead of looking at its legislative history and parsing the intent of lawmakers.

This strict adherence to a statute's text — dissecting what words mean and the boundaries they impose — has helped people behind bars advance in minimum wage and forced labor litigation because the laws do not explicitly exclude the labor in question from coverage.

In a Fifth Circuit opinion in 2021, U.S. Circuit Judge James C. Ho seemed to chastise CoreCivic for arguing that the federal TVPA doesn't apply to its work programs.

"CoreCivic claims its work programs categorically fall outside the reach of this forced-labor prohibition," he wrote. "But the text of the act contains no such detainee-labor exemption. CoreCivic simply theorizes that Congress would not have wanted the law to reach work programs like the ones it runs."

Judge Ho, writing for the majority in a split three-judge panel opinion in Martha Gonzalez v. CoreCivic Inc., said the TVPA's text "unambiguously protects labor performed in work programs in federal immigration detention facilities" full stop because the statute doesn't carve out detainee labor.

"If a party wishes to have its activities exempted from a statute, it must ask the legislature to enact such an exemption, not the judiciary," Judge Ho wrote.

With regard to forced labor claims, the case law is in much better shape than it was a decade ago, Free said, owing to the dominance of "words mean what they say" in American jurisprudence.

A key turning point was the Eleventh Circuit's 2020 opinion in Barrientos v. CoreCivic Inc.

"Nothing in the text of the statute excludes federal contractors providing immigration detention services from liability under the TVPA, even when that liability might arise out of the operation of a federally mandated work program," the appellate court said, referring to the fact that contractors run work programs in detention at the direction of ICE.

ICE did not respond to Law360's request for comment on these work programs.

Sandley, who was part of the team representing the detainees in Barrientos, said resolving the question of whether detainees can sue detention operators under the TVPA was "huge."

"It paved the way for the other ICE detention cases to move forward in those other circuits much more quickly," they said.

Given the unique conditions of confinement in immigration detention, the progress on forced labor claims is significant, said Eunice Cho, a senior staff attorney with the ACLU National Prison Project.

"It's important that the court recognized the unique environment and the unique coercion and control that the private prison companies have over people who are in detention," she said.

When it comes to who is and isn't covered under minimum wage laws, it is often a matter of exclusion. This "if you're not out you're in" approach has opened up the potential for people behind bars to get employee status.

In the Tacoma facility case, when the Ninth Circuit asked the Washington State Supreme Court to clarify whether the state's minimum wage law applies to detainees, the state high court approached the question through a straightforward textualist analysis.

The state Supreme Court looked to the statute's exemptions, focusing on 49.46.010 (k), which excludes "any resident, inmate, or patient of a state, county, or municipal correctional, detention, treatment or rehabilitative institution" from coverage under the act.

The court said the exemption is "unambiguous" and that it's clear the legislature intended for the exemption to apply to those in publicly operated facilities but not privately run ones.

"Consistent with Washington's priority of protecting employee rights, courts must liberally construe the [Minimum Wage Act]", the court said. "If the legislature intended to also exclude persons detained in private institutions, it would have done so explicitly."

That case is important because it shows that federal contractors still have to abide by state wage and hour laws, Cho said.


In its statement to Law360, GEO Group reiterated that participation in the work program does not make detainees employees.

"We believe that conclusion to the contrary is wrong under federal law," the statement said. "The wage rates associated with this federally mandated program are set by the United States Congress."

In its opening Ninth Circuit brief urging the appellate court to overturn the $23 million judgments, GEO Group said the $1-a-day rate set in the 1978 Appropriations Act remains.

But Cho pushed back on that argument.

"GEO's assertion really depends on a faulty reading of appropriations law. It is very clear from the legislation that that language that they cite to expired," she said. "There is nothing in any congressional statute or appropriation that would require GEO to limit itself to payment of $1 a day."

The FLSA of 1938 is the marquee federal minimum wage statute enacted to improve working conditions and prevent unfair competition.

Those principles are what drove the Fourth Circuit in May 2024 to rule that the act could potentially cover people incarcerated in a Baltimore County detention center but working off-site at a recycling center, said Howard Hoffman, an attorney for Hoffman Employment Law LLC who represents the inmates.

The appellate court acknowledged that there is "no categorical rule that such workers cannot be covered by the act when they work outside their detention facility's walls and for someone other than their immediate detainer."

Counsel and media personnel for Baltimore County did not immediately respond to Law360's request for comment.

"The Fair Labor Standards Act is a mandatory minimum wage and overtime statute with a very long list of defined exemptions and exceptions," Hoffman said. "When you don't find an exception or exemption, why should courts be able to write one into the statute?"

A Potential Ripple Effect for Prison Labor

The initial successes in cases involving immigration detainees and inmates working off-site raise questions about how, if at all, this changing landscape will affect the rights of prisoners.

Immigration detainee cases don't have the hurdle of the 13th Amendment exception clause, Sandley said, which prohibits slavery and involuntary servitude "except as a punishment for crime whereof the party shall have been duly convicted."

"You could get straight to the 'are they employees or not?' question, not 'Can we force them to work?'" they said.

Sandley is representing incarcerated individuals in a lawsuit alleging that slavery and involuntary servitude persist in Alabama prisons even though voters approved the removal of the exception clause from the state constitution.

"Wages are the next battleground, I think, in prison litigation after we're able to foreclose forced labor," Sandley said.

The Baltimore County case, for example, shows how the scope of prison labor is being successfully challenged because in that instance incarcerated individuals were hired out for work outside of prison — that's not what the 13th Amendment contemplates, Hancock said.

"It's not a carte blanche to just use inmate labor however you see fit," he said. "There's going to be more scrutiny placed on even circumstances under which inmates who have been convicted of a crime are put to work."

Ultimately, these civil detainee cases may have a ripple effect, Hancock said.

"As they are more and more effective, I think that it has the potential, at least, for the courts to take a little more jaundiced view of criminal cases being litigated," he said. "I think that's what people hope is that the more the spotlight is put on this, the narrower the exception is going to be drawn."

--Graphics by Ben Jay. Editing by Orlando Lorenzo and Haylee Pearl.

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.