Burleson v. State of Cal., s. 95-16188

• Decision Date: 08 May 1996
• Docket Number: Nos. 95-16188,95-16192 and 95-16550,s. 95-16188
• Citation: 83 F.3d 311
• Parties: 131 Lab.Cas. P 33,384, 3 Wage & Hour Cas.2d (BNA) 498, 96 Cal. Daily Op. Serv. 3257, 96 Daily Journal D.A.R. 5341 Gaylin BURLESON, Plaintiff, and Jerry Lee Syrovatka, Sr., Plaintiff-Appellant, v. STATE OF CALIFORNIA; Prison Industry Authority, Defendants-Appellees. Gary JERNIGAN, Plaintiff, and Jerry Lee Syrovatka, Sr., Plaintiff-Appellant, v. STATE OF CALIFORNIA; James H. Gomez; Wayne Estelle, General Manager, Prison Industry Authority; Jan Winter, Asst. General Manager of Operations, Prison Industry Board; Ray Brown, Production Manager II, Prison Industry Authority; Prison Industry Authority; Joella Fazio; David King; William Allen; John Babich; Robert Burton; Leonard Greenstone; William Saracino; Thomas Wornham, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 311

83 F.3d 311

131 Lab.Cas. P 33,384, 3 Wage & Hour Cas.2d

(BNA) 498,

96 Cal. Daily Op. Serv. 3257,

96 Daily Journal D.A.R. 5341

Gaylin BURLESON, Plaintiff, and Jerry Lee Syrovatka, Sr., Plaintiff-Appellant, v. STATE OF CALIFORNIA; Prison Industry Authority,

Defendants-Appellees.

Gary JERNIGAN, Plaintiff, and Jerry Lee Syrovatka, Sr., Plaintiff-Appellant, v. STATE OF CALIFORNIA; James H. Gomez; Wayne Estelle,

General Manager, Prison Industry Authority; Jan Winter,

Asst. General Manager of Operations, Prison Industry Board;

Ray Brown, Production Manager II, Prison Industry Authority;

Prison Industry Authority; Joella Fazio; David King;

William Allen; John Babich; Robert Burton; Leonard

Greenstone; William Saracino; Thomas Wornham, Defendants-Appellees.

Nos. 95-16188, 95-16192 and 95-16550.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 13, 1996.

Decided May 8, 1996.

Jason Rabinowitz, Mark A. Garver, Certified Law Students; Susan D. Christian, Supervising Attorney, University of California Davis School of Law, Davis, California, for plaintiff-appellant.

Larry G. Raskin, Deputy Attorney General, Sacramento, California, for defendants-appellees.

Appeals from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding. Nos. CV-93-200-GEB, CV-92-1408-GEB.

Before: THOMPSON, KLEINFELD and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge:

Plaintiffs in these consolidated cases ^* appeal from the order of the district court granting summary judgment to defendants. Plaintiffs are current and former inmates in the California state prison system who claim that they are or were "employees" within the meaning of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq., and are thus entitled to receive the federal minimum wage for work performed for the State of California's Prison Industry Authority ("PIA"). Defendants are the State of California, the PIA, and certain PIA personnel in their official capacities. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291, and we affirm.

BACKGROUND

In the California state prison system, able-bodied prisoners are required to perform "as many hours of faithful labor in each day and every day during his or her term of imprisonment as shall be prescribed by the rules and regulations of the Director of Corrections." Cal.Penal Code § 2700. The implementing regulation provides that a prisoner's work obligation "may be a full day of work, education, or other program activity, or a combination [thereof]." Cal.Code Regs. tit. 15, § 3040(a).

Plaintiffs worked for enterprises operated by the PIA, producing various goods and services that the PIA sold to other entities, public and private, for a profit. The PIA paid plaintiffs between $.30 and $.95 an hour for their work, far below the federal minimum wage of $4.25 an hour to which plaintiffs claim they are entitled. ¹

The California Legislature created the PIA in 1982 to replace the old prison industries program administered directly by the Director (the "Director") of the California Department of Corrections ("CDC"). The legislature found that the old prison industries program had failed to provide inmates with meaningful jobs, offset the cost of operating the prison system, and reduce inmate idleness. See 1982 Cal. Stat., c. 1549, §§ 2-3, at 6034. It intended the PIA to achieve these goals. Id.

DISCUSSION

I

We recently determined the applicability of the FLSA's minimum wage provisions to prisoners in Arizona's prison work program. Hale v. Arizona, 993 F.2d 1387 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 114 S.Ct. 386, 126 L.Ed.2d 335 (1993). In denying the plaintiffs' claims, we held:

While we do not believe that prisoners are categorically excluded from the FLSA, we hold that the inmates in this case, who worked for programs structured by the prison pursuant to the state's requirement that prisoners work at hard labor, are not "employees" of the state within the meaning of the FLSA.

Id. at 1389. In so holding, we adapted the "economic reality" test to the circumstances of inmate workers, noting that the "economic reality of the relationship between the worker and the entity for which the work was performed lies in the relationship between prison and prisoner. It is penological, not pecuniary." Id. at 1395 (emphasis added). Hale concluded "the economic reality is that their [plaintiffs'] labor belonged to the institution," and held that "they were not 'employees' of the prison entitled to be paid a minimum wage under the FLSA." Id.

We followed Hale in Morgan v. MacDonald, 41 F.3d 1291 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2591, 132 L.Ed.2d 839 (1995). There, we denied FLSA coverage to prisoners in Nevada's prison work program. Id. at 1293.

The case at bench falls squarely within Hale and Morgan. The workers of California's PIA work in a prison-structured program pursuant to a state hard labor statute, ² and are therefore not "employees" under FLSA.

II

California's work requirement statute, Cal.Penal Code § 2700, is not significantly different from the Arizona and Nevada statutes which gave the prison industries programs in Hale and Morgan their "penological" purpose. ³ California's inmates are under legal compulsion to work or to participate in other prison-run programs, as assigned. ⁴

Plaintiffs stress that no apparent statutory or regulatory authority exists for the CDC to assign them to work for the PIA without their consent. Indeed, prison authorities make work assignments only after consideration of, inter alia, the inmate's "express needs and desires." Cal.Code Regs. tit. 15, § 3040(c). However, "in lieu of an inmate's assignment to a mutually agreed upon program" the CDC can compel inmates to perform "any work deemed necessary to operate and maintain the institution and its services in a clean, safe, and efficient manner." Cal.Code Regs. tit. 15, § 3040(d). ⁵

The voluntary nature of assignment to the PIA does not create an oasis of contractually "bargained-for exchange" in the midst of a desert of compelled labor in the California state prison system. As the district court pointed out, plaintiffs "mistakenly equate the ability to choose between various work programs offered by the CDC, with the freedom to 'sell' their labor to the PIA."

The consensual nature of a particular work assignment in a hard-labor state does not remove the penological purpose from the work relationship. As we stated in Hale:

Inmates submit that it is significant that they had to apply for the work they did and were screened for security and other purposes. The fact that prison authorities may have structured certain programs more selectively than others does not, however, make them less of a prison-structured program pursuant to the State of Arizona's requirement that prisoners work at hard labor. ⁶

Hale, 993 F.2d at 1394 n. 10; see also Morgan, 41 F.3d at 1292 (inmate "chose" to fulfill Nevada's hard-labor requirement by working at education center run by local county school board). We therefore hold that the existence of a choice between prison programs in a state with a work-requirement statute does not render the inmate's work nonpenological.

III

Plaintiffs also argue that the PIA's distinctive organizational structure renders work for PIA not work in a "prison-structured program."

The PIA is administered separately from the rest of the CDC by its own Prison Industry Board. See Cal.Penal Code § 2802-08. ⁷ The monies of the PIA are maintained in a "revolving fund" administered with the outside involvement of only the State Treasurer and the State Controller. See § 2806.

Nevertheless, the PIA is by statute a part of the CDC. Cal.Penal Code § 5001. The PIA's status as a part of the California correctional system clearly brings it within the ambit of "prison-structured programs." That it may be separately administered within the CDC does not alter the PIA's fundamentally penological character as a "prison-structured program."

IV

Citing no authority, plaintiffs argue that the PIA's focus on generating a profit from its industries renders the inmates' relationship with PIA "pecuniary" rather than "penological."

Defendants do not contest that PIA seeks to raise net revenue from "profit-making enterprises" and otherwise "replicat[es] as closely as possible free world production and service operations...." See 1982 Cal. Stat., c. 1549, § 3(a)-(b), at 6034. However, this is not inconsistent with ascribing a "penological" purpose to the work relationship. As the Seventh Circuit has noted:

For the government ... profits are not the ultimate goal. A governmental advantage from the use of prisoner labor is not the same as a similar low-wage advantage on the part of a private entity: while the latter amounts to an unfair windfall, the former may be seen as simply paying the costs of public goods-including the costs of incarceration....

Vanskike v. Peters, 974 F.2d 806, 811-12 (7th Cir.1992), cert. denied, 507 U.S. 928, 113 S.Ct. 1303, 122 L.Ed.2d 692 (1993). The fact that California, through the PIA, attempts to generate a profit from plaintiffs' labor does not affect the economic reality that their labor "belongs" to the state. Nor does it change the penological purpose of PIA's enterprise. See also 1982 Cal. Stat., c. 1549, § 3, at 6034. ⁸

V

Finally, by reference to certain worker benefits and protections under state law, plaintiffs attempt to shore up their argument that the "economic reality" of their relationship to the PIA is one of an "employee."

California law considers PIA workers to be "employees" for purposes of workers' compensation coverage and protection under the California Occupational Safety and Health Act of 1973. See Cal. Lab.Code §§ 3351(e), 6304.2. PIA workers are paid for official break time, job-related training, and state holidays. A PIA affirmative action program...