Fed. Supremacy Stance Seen As Weak In Detainee Wage Row

The U.S. Department of Justice's argument for federal supremacy as grounds to deny immigrant detainees minimum wage in the workers' fray with detention operator GEO Group doesn't hold up to scrutiny, attorneys say, in a case that has helped shine a light on employee rights for those behind bars.

The DOJ barreled into the key case around civil detainee wage rights, arguing that paying immigrant detainees Washington state's minimum wage regulates and discriminates against the federal contractors and conflicts with Congress' intentions for the voluntary work programs at U.S. Immigration and Customs Enforcement facilities.

These conditions, the DOJ argued in its February brief, violate the supremacy clause — the idea that the U.S. Constitution and federal law reign supreme.

It's "disappointing" that President Joe Biden's administration filed this brief at such a late stage in the litigation, said Eunice Hyunhye Cho, a senior staff attorney with the ACLU National Prison Project who focuses on U.S. immigration detention.

"What the Biden administration is doing is voicing support for the ability of private prison corporations to exploit detained immigrants," she said. "It is certainly counter to the image that the Biden administration has been trying to push publicly regarding the rights of workers. … It is especially baffling after multiple courts have concluded that the Washington state minimum wage applies to detained immigrants in this context."

In December, the Washington Supreme Court affirmed that civil detainees confined in a private facility could be entitled to minimum wage under state law. The Ninth Circuit had asked the state high court to evaluate the legal framework supporting the $23.2 million in judgments secured by the state and by the detainees.

The GEO Group is attempting to overturn those judgments finding the detention operator failed to pay the detainees turned employees minimum wage and unjustly enriched itself. Detainees at the Tacoma, Washington, facility in question were paid $1 a day to participate in a work program where they cleaned, cooked and did laundry.

A GEO Group spokesperson told Law360 the Ninth Circuit should reject Washington's "unconstitutional attempt to interfere with or regulate a voluntary work program that is required to be provided at all contracted federal immigration centers in accordance with standards and pay rates established by the federal government."

To advance its supremacy argument, the DOJ pointed to two doctrines: obstacle preemption and intergovernmental immunity.

The former requires that federal law preempts state law if state law interferes with congressional intent. Intergovernmental immunity bars state law from regulating the United States or discriminating against the federal government or those with whom the government has a relationship, such as contractors.

But the DOJ's arguments are speculative, not well-developed and do not show why these detainees shouldn't get minimum wage, said Michael Fallings, a managing partner who focuses on federal sector labor with Tully Rinckey PLLC.

"I'm not seeing any way how the supremacy clause could apply here, and I don't think their policy arguments really stand water either," he said. "I would be interested to see how this all turns out. But I was surprised to see the DOJ's input in this like that."

Fallings said he thinks the DOJ might have intervened because the finding that detainees could be employees under state minimum wage law could be far-reaching.

Raphael Janove, founder and shareholder of Janove PLLC, which advocates on behalf of workers and small business, said the DOJ failed to convincingly argue that paying detainees the Washington minimum wage would be a real obstacle to housing federal immigration detainees through these contracts.

The DOJ rests its arguments on "soft language" about how the program might be undermined, Janove said.

"It's just some speculation," he said. "It doesn't get to the level of preemption."

The DOJ said compensating detainees under Washington state's minimum wage law runs afoul of the federal government's authority over immigration as well as Congress' intent for the detention work programs.

To support its position, the DOJ points to an appropriations act from 1978 for fiscal year 1979 in which Congress authorized allowances to detainees involved in these work programs at the rate of $1 a day.

"Absent further action from Congress, the district court's holding would imperil the program's ongoing viability," the DOJ said. "Application of the minimum wage rates would replace the $1/day floor prescribed by congressional appropriations and [Department of Homeland Security] standards with a floor of $16.28/hour."

But that 1978 law has no preclusive effect at this time, Cho said.

"The DOJ amicus brief ignores key principles of appropriation law and it gets the facts wrong," she said.

That's because the 1978 law that the GEO Group centers its argument on was an appropriation act, which is applicable only to the fiscal year at issue unless otherwise specified in the legislation.

Appropriations laws are distinct from so-called authorizing legislation, which grants the government the authority to develop and spend on a particular program — a requirement for future appropriations.

"That law is no longer in effect — it was only operational for the applicable fiscal year — and can't constitute an obstacle," Cho said "They're making very incorrect assumptions about appropriation law to claim that there is this conflict in the first place."

The DOJ also posits that paying detainees the Washington minimum wage is discriminatory because Washington state's Minimum Wage Act excludes "any resident, inmate, or patient of a state, county, or municipal correctional, detention, treatment or rehabilitative institution" from coverage.

"The state has chosen to exempt all of its own detainees from the Minimum Wage Act while refusing to extend that same exemption to federal detainees," the DOJ said.

The Washington Supreme court ruled, however, that the plain text of the statute suggests that exclusion does not apply to privately run detention facilities.

The DOJ's intergovernmental immunity doctrine argument doesn't apply because the Washington Minimum Wage Act is a law of general application, Janove said.

"The only reason the GEO Group has to pay more money is because they are just an employer under [Washington's] general statute," he said. "You're not worse off because you are contracting with the federal government. It's not discriminating against you."

A critical legal issue that should not be dismissed is that the detainees at issue have not been convicted of a crime, Janove said.

"There's an important distinction that shouldn't be just glossed over," Janove said.

Generally, people who are incarcerated for criminal offenses do not have a right to minimum wage. This is a vestige of the 13th Amendment's abolition of slavery and "involuntary servitude" save for "as a punishment for crime whereof the party shall have been duly convicted."

This case and others have contributed to a broader recognition of the rights of people who are working while detained and incarcerated, Cho said, and a favorable ruling for the detainees from the Ninth Circuit would send a strong message.

"It'd be an important step in recognizing that detained immigrants have real enforceable dignity," she said. "And it'd be a setback for private prison corporations to enrich themselves by incarceration, detention, and abuse and exploitation."

The cases are Ugochukwu Nwauzor et al. v. The Geo Group Inc., case number 21-36024, and State of Washington v. The Geo Group Inc., case number 21-36025, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Bruce Goldman and Nick Petruncio.

Update: This article has been updated with comment by the GEO Group. 

For a reprint of this article, please contact reprints@law360.com.