Menocal v. GEO Grp., Inc.

• Decision Date: 06 July 2015
• Docket Number: Civil Action No. 14–cv–02887–JLK
• Parties: Alejandro Menocal, Marcos Brambila, Grisel Xahuentitla, Hugo Hernandez, Lourdes Argueta, Jesus Gaytan, Olga Alexaklina, Dagoberto Vizguerra, and Demetrio Valegra, on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. The GEO Group, Inc., Defendant.
• Court: U.S. District Court — District of Colorado

113 F.Supp.3d 1125

Alejandro Menocal, Marcos Brambila, Grisel Xahuentitla, Hugo Hernandez, Lourdes Argueta, Jesus Gaytan, Olga Alexaklina, Dagoberto Vizguerra, and Demetrio Valegra, on their own behalf and on behalf of all others similarly situated, Plaintiffs,

v.The GEO Group, Inc., Defendant.

Civil Action No. 14–cv–02887–JLK

United States District Court, D. Colorado.

Signed July 6, 2015

Alexander Neville Hood, Towards Justice, Andrew Hess Turner, Buescher, Kelman & Perera, P.C., Hans Christopher Meyer, Meyer Law Office, P.C., Denver, CO, Robert Andrew Free, R. Andrew Free Law Office, Nashville, TN, Brandt Powers Milstein, Milstein Law Office, Boulder, CO, for Plaintiffs.

David R. DeMuro, Shelby Anne Felton, Vaughan & DeMuro, Denver, CO, for Defendant.

Kane, Senior U.S. District Judge

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Defendant's Motion to Dismiss (Doc. 11). For the reasons that follow, the motion is GRANTED in part and DENIED in part.

Background

Plaintiffs are current and former detainees at the Aurora Facility, a private, for-profit immigration detention facility owned and operated by defendant GEO Group in Aurora, Colorado under contract with the Federal government. Doc. 1 at p.1. Plaintiffs allege that detainees participate in a "Voluntary Work Program" at the facility where they perform tasks such as maintaining the on-site medical facility, doing laundry, preparing meals, and cleaning various parts of the facility for compensation of $1 per day. Doc. 1 ¶¶ 1, 28. Plaintiffs also allege that each day, six randomly selected detainees (whether they participate in the Voluntary Work Program or not) are required to clean the facility's "pods" without compensation under threat of solitary confinement. Doc. 1 ¶¶ 5–6. Plaintiffs bring three claims. First , Plaintiffs allege that the Voluntary Work Program violates the Colorado Minimum Wage Order ("CMWO") because Plaintiffs are paid $1/day instead of the Colorado minimum wage. Doc. 1 at ¶¶ 40–52. Second , Plaintiffs allege that forcing detainees to clean their living areas under threat of solitary confinement violates the Trafficking Victims Protection Act's ("TVPA") prohibition on forced labor. Doc. 1 at ¶¶ 69–85. Third , Plaintiffs allege that the Defendant was unjustly enriched through the operation of the Voluntary Work Program. Doc. 1 at ¶¶ 101–107.

Defendant has moved to dismiss all three of Plaintiffs' claims. First, Defendant argues that it is not an "employer," and that the detainees are not "employees," within the meaning of the CMWO. Doc. 11 at 5–11. Second, Defendant argues that the TVPA does not apply to immigration detainees. Id. at 11–15. Finally, Defendant argues that Plaintiffs' unjust enrichment claim should be dismissed as duplicative of their claim for violation of the CMWO. Id. at 15. In its reply brief, Defendant also asserts that Plaintiffs' claims are barred by the government contractor defense and are preempted by the McNamara–O'Hara Service Contract Act ("SCA"). Doc. 18 at 5–8. Plaintiffs sought and were granted leave to file a sur-reply responding to these additional arguments. See Doc. 21.

Analysis

I. Whether the Parties Are Subject to the Colorado Minimum Wage Order

a. Whether Plaintiffs are Employees Under the CMWO

The CMWO defines "employee" as "any person performing labor or services for the benefit of an employer in which the employer may command when, where, and how much labor or services shall be performed." 7 Colo. Code Regs. 1103–1:2. Defendant argues that prisoners are not "employees" under the Fair Labor Standards Act ("FLSA"), and that similarly the CMWO was not intended to be extended to those working in government custody. Doc 11 at 7–11; see Alvarado Guevara v. I.N.S. , 902 F.2d 394, 396 (5th Cir.1990) (finding that immigration detainees did not qualify for protection under the FLSA because they were not "employees"). Defendants also cite a March 31, 2012 Advisory Bulletin from the Colorado Department of Labor ("CDOL"), which finds that inmates and prisoners are exempt from the CMWO and "are not employees according to Colorado law." See Doc. 11 Ex. D. Plaintiffs respond that the Advisory Bulletin does not apply because plaintiffs are civil immigration detainees in a private detention facility, and not prisoners in government custody. Doc. 15 at 19–22. Defendant argues that the reasoning applied in Alvarado to conclude that prisoners are not employees under the FLSA applies here because immigration detainees are housed by the government and do not require the minimum wage to bring up their standard of living. Doc. 18 at 19–22.

I find the Plaintiffs are not "employees" under the CMWO. Although immigration detainees appear to fall under the broad definition of "employee," so do prisoners, and the CDOL has found that the CMWO's definition of "employee" should not apply to prisoners. In addition, because immigration detainees, like prisoners, do not use their wages to provide for themselves, the purposes of the CMWO are not served by including them in the definition of employee.See C.R.S. § 8–6–104 (purpose of the minimum wage is to "supply the necessary cost of living and to maintain the health of the workers"). Finally, the Fifth Circuit has held that immigration detainees are not employees under the FLSA's similarly broad definition ("any individual employed by an employer") because the congressional motive for enacting the FLSA, like the CMWO, was to protect the "standard of living" and "general well-being" of the worker in American industry. Alvarado , 902 F.2d at 396.

b. Whether Defendant is an "employer" under the CMWO

The CMWO applies to employers and employees in four industries: (1) Retail and Service; (2) Commercial Support Service; (3) Food and Beverage; and (4) Health and Medical. 7 Colo. Code Regs. 1103–1:1. Plaintiffs allege that Defendant is a "Health and Medical" employer, a "Food and Beverage" employer, and a "Retail and Service" employer. Doc. 15 at 7–19. Although it is not necessary to reach the question of whether the Defendant is an "employer" under the CMWO because I have concluded that the Plaintiffs are not employees, each of these definitions is analyzed below in order to have a complete record in the event of an appeal.

i. Health and Medical

The CMWO defines "Health and Medical" employers as:

[A]ny business or enterprise engaged in providing medical, dental, surgical or other health services including but not limited to medical and dental offices, hospitals, home health care, hospice care, nursing homes, and mental health centers, and includes any employee who is engaged in the performance of work connected with or incidental to such business or enterprise, including office personnel.

7 Colo. Code Regs. 1103–1:2(D). Plaintiffs allege that because of Defendant's "on-site medical facility," which provides health services to the detainees and which is partly maintained and operated by detainees, see Doc. 1 ¶¶ 1, 45, Defendant meets the definition of a "Health and Medical" employer. Defendant responds that this definition should be read to reach only those businesses that provide health or medical services to the general public. Doc. 11 at 7; see Salazar v. Butterball, LLC, 644 F.3d 1130, 1144 (10th Cir.2011) (interpreting the food and beverage section of the CMWO to require that the food or beverage be sold "to the ultimate consumer"). Plaintiffs respond that the drafters knew how to include a requirement that the services be provided to the "public," as they did in the "Retail and Service" section of the same regulations, and that private, for-profit hospitals not necessarily accessible to the general public are expressly included in an opinion of the CDOL interpreting the "Health and Medical" provision. Doc. 15 at 11–13. Defendants reply that Plaintiff's interpretation means that any business with any on-site medical component would qualify under the CMWO, which is an absurd result, and that the Tenth Circuit has read a requirement that "Food and Beverage" sales be to the "general public," even though that language does not appear in the section of the regulations defining "Food and Beverage" employers. Doc. 18 at 15–19; Salazar, 644 F.3d at 1144.

I find that Defendant is not a "Health and Medical" employer under the CMWO. I agree with Defendant that this section of the CMWO requires that the business at issue offer services in some capacity to the general public. See Salazar, 644 F.3d at 1144. Defendant does not provide any health or medical services to the general public, and the CDOL Advisory Bulletin 24(I) takes the position that "state and government-operated hospitals are not covered by Colorado wage law and the Wage Order." See Doc. 15 at 12 n.10. I find that the medical facility at the Aurora facility is more akin to a government operated hospital than a private business that provides health care to the general public.

ii. Retail and Service

The CMWO also applies to Retail and Service industry employers, defined as:

Retail and Service: any business or enterprise that sells or offers for sale, any service, commodity, article, good, real estate, wares, or merchandise to the consuming public, and that generates 50% or more of its annual dollar volume of business from such sales. The retail and service industry offers goods or services that will not be made available for resale. It also includes amusement and recreation, public accommodations, banks, credit unions, savings and loans, and includes any employee who is engaged in the performance of work connected with or incidental to such business or enterprise, including office personnel.

7 Colo. Code Regs. 1103–1:2(A). Defendant argues that it does not provide any services to the "consuming public," and that it is not like the other examples of retail and service industry employers given, which do offer services to the public. Doc. 11 at 5–6. Plaintiffs respond that Defendant "sells incarceration services to governmental customers."...