Lawsuit Could Force For-Profit Detention Centers to Pay Detainees Minimum Wage

Lawsuit Could Force For-Profit Detention Centers to Pay Detainees Minimum Wage

Arrive on the job, clock in with a timesheet, clean the toilets and get paid. Like countless other janitors across the country, this was the course of 28-year-old Emmanuel Abi’s workday.

Abi moved up quickly, getting promoted from the bathrooms to the kitchen, where his wages more than doubled.

But still he was paid 50 cents or less an hour, according to a lawsuit seeking back wages. Unlike his supervisor and colleagues, Abi did not receive New Mexico’s $7.50 an hour minimum wage for his work at a privately run detention center in the state.

Also, unlike his colleagues who lived in the surrounding area, Abi was a detainee.

Abi typically worked 30 hours a week and earned an average of $15 a week, according to his legal complaint. His suit is one of at least seven alleging that private prison companies violate federal labor law when they pay detainees less than minimum wage and reap profit off detainee labor.

Of the roughly 400,000 people booked into immigration detention in 2018, 60 percent were held in jails run by CoreCivic (formerly known as Corrections Corporation of America) and GEO Group, the nation’s largest private prison companies. Contracts with Immigration and Customs Enforcement (ICE) accounted for a quarter of CoreCivic’s $1.84 billion revenue last year.

At least 127,000 detainees have performed maintenance work for CoreCivic, the corporation that operates the Cibola detention center, since 2008. This is according to calculations filed in court and based on company records.

A second set of lawsuits makes a more serious charge than violating minimum-wage laws. They allege that some detainee work is not voluntary at all, but is, in fact, forced labor. According to case filings, CoreCivic and other private prison companies punished detainees for refusing to work, violating laws against labor trafficking.

CoreCivic rejects that claim, saying in a statement that “detainees are subject to no disciplinary action whatsoever if they choose not to participate in the work program.” A media representative said that Abi was not an employee but a volunteer, and that Congress and the courts have deemed such volunteer work programs, which allow pay as low as a dollar a day, to be legal. The basis is a 70-year-old piece of legislation that set the dollar-a-day rate for detained workers.

“There’s a lot at stake,” said Abi’s attorney, Joseph Sellers. If Abi wins, “it would be the first case to establish that these detainees are entitled to minimum wage.”

When “Volunteering” Is the Only Option

Sylvester Owino, 44, with his wife Velia and 10-month old daughter, Akeyo.
Sylvester Owino with his wife Velia and 10-month-old daughter, Akeyo.

Sylvester Owino came to the United States from Kenya seeking political asylum more than two decades ago, and he spent nearly half of that time in detention centers, and seven of those years at jails operated by CoreCivic.

He signed up for what the company calls its “voluntary work program” in the Otay Mesa Detention Center in San Diego. He said in court papers that he was regularly expected to work beyond eight hours a day — up to 14 hours a day with no scheduled rest or meal breaks.

Over the years, Owino performed jobs ranging from janitorial work, preparing cleaning chemicals and kitchen service. For each of these, he was asked to sign a contract.

“The work agreement was handed to me, and I was told to sign without reading the agreement,” Owino said in court filings. The agreement he signed was similar to this one, which lists compensation as $1 a day.

Owino said payments were not always recorded in his account, even when he reported the missed payments to CoreCivic. He joined the lawsuit against CoreCivic under the California Trafficking Victims Protection Act, claiming forced labor in the jail.

Twenty-two-year-old Muhannad Taleb was also held at Otay Mesa Detention Center. He is not involved in a lawsuit but participated in the work program.

Muhannad Taleb participated in the work program at Otay Mesa Detention Center, and said he was held in solitary confinement for 10 days for refusing to work after not being paid.
Muhannad Taleb participated in the work program at Otay Mesa Detention Center and said he was held in solitary confinement for 10 days for refusing to work after not being paid.

Like Owino, Taleb was paid inconsistently. “You have to request, ‘Hey I worked that day, but I didn’t get paid,’ and it’s all so ridiculous, and it’s all over one dollar,” Taleb said.

He volunteered to work because he wanted to be outside and needed money for phone calls and other necessities. “All my money, I spent … on the phone,” Taleb said. “I had no money; I had no one,” Taleb said.

The jail, at times, only served rice for dinner, according to Taleb and volunteers from a visitation group. CoreCivic’s commissary sold extra food at a 30 percent markup, according to sworn testimony by a CoreCivic executive who worked at Otay Mesa.

Desperation for funds can leave detainees with few options, according to Angela Fujii, the organizer of a visitation program to the Otay Mesa jail. CoreCivic banned the program, called SOLACE (“Souls Offering Loving and Compassionate Ears”), because the volunteers refused to sign a CoreCivic form asking them not to speak to anyone in the media about their visits.

“Being able to call out requires that you have money in your account in order to make a phone call,” Fujii said. “You have to buy stamps if you want to write a letter, so really, the only way to have contact with the outside world requires you to have funding.”

Taleb, whose father and brother died during the Syrian civil war, got a visa to visit Mexico in order to request asylum at the U.S. border (asylum seekers must present themselves at the border, not within their home country, to make an asylum request). From the border crossing at San Ysidro, he was transferred into detention in Otay Mesa for the following year and a half.

Speaking no English, Taleb said he spent the first six months trying to find an attorney. His savings disappeared quickly as he made phone calls to his family back in Syria and to potential attorneys in the U.S.

After six months, when he had learned some English from fellow detainees, Taleb asked to work. He said he was under the impression it would help his case to work.

“Then I started working for the kitchen because they give us an idea that if you’re nice and you work, this all will help you for the court. But that doesn’t make any sense. They just want to use you for them to save money,” Taleb said.

From Fujii’s perspective, even when employees aren’t coerced into working with threats of solitary confinement, the nature of detention leaves detainees with very few options.

For Taleb, the work program provided more than the small amounts of money he earned; it also offered an escape from the reality of detention. He requested a transfer from the kitchen to outside detail. He said the work was hard and intense, but that it gave him a small taste of freedom.

“We weren’t excited about the dollar,” he explained. “We were just excited because we see the sun.”

Taleb was released from detention on bond and now works at a liquor store in San Diego. He was not granted asylum but was given withholding of removal, an alternative for those fearing persecution in their home country. Under his withholding of removal status, Taleb has temporary work authorization without the possibility of citizenship.

These are the documents Muhannad Taleb was given after being released from being held for 18 months at Otay Mesa Detention Center.
These are the documents Muhannad Taleb was given after being released from the Otay Mesa Detention Center after bring held for 18 months.

Profiting From “Low Maintenance Costs”

According to contract documents with ICE, CoreCivic was paid by the government about $95 per day, per detainee at one detention center in Texas. CoreCivic does not disclose exactly how many hours of work its detainees have performed, so it is not possible to calculate how much money it has saved by using low-wage detainees. But one company official said that detained workers do most of the work inside the jail.

Robert Lacy Jr. is the warden at the Otay Mesa Detention Center, where Owino and Taleb were held and participated in the work program. In court filings, Lacy said, “When you look at the jobs that I have, it is not many at all. I don’t have a lot of workforce where I count on the detaining population to get it done.”

During legal proceedings, CoreCivic turned over spreadsheets detailing the number of detainees who had worked in its volunteer program at its detention centers. A plaintiff’s attorney compiled these preliminary numbers, calculating that more than 127,000 people participated in the company’s work program from December 2008 to 2018. Each hour these detainees worked would have cost the company at least six times as much if they paid minimum wage.

Jason Ellis, a CoreCivic managing director, said that the company factors detainee labor into their budgets. The millions of dollars in wages CoreCivic has saved by relying on detained laborers are key to Abi’s lawsuit according to his attorney, Sellers.

“We think [the voluntary work program] is a system which they use to maintain the profitability of the facility,” he said.

Since 2015, at least seven lawsuits have been filed against private detention center contractors including CoreCivic and GEO Group. Five of these include claims of unjust enrichment — namely, profiting off uncompensated labor. All of the cases are still being litigated.

When private detention centers rely on cheap detainee labor, according to some of the suits, they deprive citizens of jobs, and communities of the economic benefits those jobs would bring.

Cibola County Correctional Center, where Abi worked for a dollar a day, sits on unincorporated county land in a region with a 5.6 percent unemployment rate, higher than the national average.

When the Work Isn’t Voluntary at All

Shoaib Ahmed came to the United States seeking legal asylum from his home country, Bangladesh. He was detained in Georgia at a detention center run by CoreCivic for a year and a half.

While CoreCivic insists its work programs are entirely voluntary, Ahmed said he was held in solitary confinement for 10 days for refusing to work after not being paid.

As his asylum case dragged on, Ahmed chose to be deported as a way out of Stewart Detention Center, according to his attorney.

Ahmed is one of three plaintiffs in a labor trafficking case against CoreCivic. Theirs is one of several cases against privately run detention centers under federal anti-trafficking laws.

“On the trafficking front, it’s very clear that CoreCivic subjected our clients to forced labor,” said Ahmed’s attorney, Azadeh Shahshahani.

Martha Gonzalez is also suing CoreCivic, alleging labor trafficking at the company’s detention center in Texas. She came to the United States seeking asylum as a survivor of domestic violence.

As a participant in the work program at Laredo Detention Center, she said she was denied toothpaste and sanitary products if she and other detainees refused to work.

Sofia Casini is a community organizer who visits the Laredo Detention Center and worked with Gonzalez. “If women don’t want to work,” she said, “they’re threatened in different ways — reports of bad character that would go against their asylum case.”

CoreCivic filed a motion to dismiss Gonzalez’s labor trafficking case, but it was denied and the lawsuit is still pending.

Legislation That Hasn’t Been Updated in 70 Years

CoreCivic maintains it complies with the law set forth by Congress in its detainee work program.

If people in detention are convicted of crimes, low pay is legal because the U.S. Constitution’s 13th Amendment allows even forced labor as “punishment for a crime.” But most of those held in immigration detention are not being punished for a crime.

Taleb, Abi and Owino were seeking asylum, a right guaranteed by U.S. and international law. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act required mandatory detention of asylum seekers.

The work program in detention centers was legislated in 1943 for internment camps, where immigrants and citizens alike were held during World War II and paid $0.80 a day for work, according to research by immigration detention expert Jacqueline Stevens. If adjusted for inflation, that pay would now be at least $25 a day.

Congress raised the rate to a dollar a day in 1950 and reaffirmed it each year up until 1978, the last time Congress set the rate of pay. Five years later, CoreCivic opened its first privately run detention center in Houston, Texas.

In courts, the rate was most recently upheld almost 30 years ago, in the 1990 case of Alvarado Guevara v. INS. A federal appeals court decided that the Fair Labor and Standards Act (FLSA) didn’t protect detainees in government-run detention centers because they were not participating in U.S. industries. CoreCivic is a publicly traded company.

The Department of Labor and courts have stated that undocumented immigrants are protected by the FLSA. According to a 2010 letter, “The longstanding position of the Department of Labor is that undocumented workers are entitled to minimum wages and overtime pay for hours worked under the FLSA.”

The dollar-a-day rate was originally set by Congress; it can also be adjusted in Congress.

“Congress has the power of the purse,” said Sylvia Garcia, a Democratic congresswoman who represents the district surrounding Houston, Texas, and is on the House subcommittee on Immigration and Citizenship.

The last time members of Congress addressed the work program was in March 2018 when 18 Republicans signed a letter in support of the private prison companies. At least two of the signatories received money from CoreCivic and GEO Group’s combined $1.7 million campaign finance contribution budget.

“The real challenge with these private facilities is that their incentive is to keep bodies there because that’s how they get paid,” Garcia said.