Vanskike v. Peters

Decision Date31 August 1992
Docket NumberNo. 89-3082,89-3082
Citation974 F.2d 806
Parties30 Wage & Hour Cas. (BNA) 1739, 61 USLW 2203, 123 Lab.Cas. P 35,711 Daniel Lee VANSKIKE, Plaintiff-Appellant, v. Howard A. PETERS, III, * Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Jerold S. Solovy, C. John Koch, Glenn E. Heilizer, Jenner & Block, Chicago, Ill., for plaintiff-appellant.

Claudia E. Sainsot, Deputy Atty. Gen., Office of the Atty. Gen., Chicago, Ill., Randy E. Blue, Office of the Atty. Gen., Criminal Appeals Div., Springfield, Ill., for defendant-appellee.

Before CUDAHY and MANION, Circuit Judges, and GIBSON, Senior Circuit Judge. **

CUDAHY, Circuit Judge.

Daniel Vanskike, an inmate at the Stateville Correctional Center in Joliet, Illinois, has performed various work assignments while in prison. In this appeal we must decide whether Vanskike is entitled to the federal minimum wage for his work by virtue of being an "employee" under the Fair Labor Standards Act.

I.

Vanskike filed a pro se complaint against the Director of the Illinois Department of Corrections (DOC), alleging that the DOC used and continues to use prisoners for work assignments. The complaint alleges that Vanskike has done "forced labor" as a janitor, kitchen worker, gallery worker and "knit shop piece-line worker" while incarcerated at Stateville and Menard Correctional Centers. It charges that the DOC does not compensate working prisoners with "equal minimum fairness employment compensation" ordinarily paid to "any normal employee ... on a[n] hour for hour wage."

The district court construed the claim as one brought under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., and granted leave to proceed in forma pauperis. A magistrate judge denied the plaintiff's motion for appointment of counsel. The district court then granted the DOC's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), concluding that prisoners are not "employees" under the Fair Labor Standards Act and that neither the DOC nor the State of Illinois acts as an "employer" with respect to the prisoners. 1

II.

We review the grant of a motion to dismiss de novo, assuming the truth of all factual allegations and drawing reasonable inferences in favor of the plaintiff. Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir.1991). Because the plaintiff in this case was proceeding pro se in the district court, his complaint must be liberally construed to ensure that his claims receive fair and meaningful consideration. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir.1984).

A.

The FLSA, which was enacted in 1938, requires employers to pay their employees a minimum hourly wage--currently $4.25. 29 U.S.C. § 206(a)(1) (1992 Supp.). The Act defines "employee" in a circular fashion, as "any individual employed by an employer," 29 U.S.C. § 203(e)(1), including "an individual employed by a State," 29 U.S.C. § 203(e)(2)(C). The term "employer" includes "a public agency." 29 U.S.C. § 203(d). The FLSA defines the term "employ" as "to suffer or permit to work." 29 U.S.C. § 203(g).

Vanskike argues initially that the FLSA's "clear and unambiguous" language places working prisoners squarely within the scope of the minimum wage requirement. Vanskike relies on Demarest v. Manspeaker, 498 U.S. 184, 111 S.Ct. 599, 112 L.Ed.2d 608 (1991), in which the Supreme Court held that a state prisoner was entitled to a statutory witness fee as a "witness ... in attendance" under 28 U.S.C. § 1821. In Demarest, however, there was no question that the prisoner was literally a "witness" within the plain language of the statute. Here it is simply not so clear. The statute itself provides little assistance, and the term "employee" does not obviously include prisoners who perform work within a prison. 2 When it comes to such appeals to "plain" or "clear" language, perhaps our best guide consists of our common linguistic intuitions, and those intuitions are at least strained by the classification of prisoners as "employees" of the DOC or of the State. Moreover, words have meaning in context, and it is rare that statutory terms may be responsibly applied without any consideration whatsoever of the statutory context and purposes. See First Chicago Corp. v. Commissioner, 842 F.2d 180, 183 (7th Cir.1988).

The Supreme Court has instructed the courts to construe the terms "employee" and "employer" expansively under the FLSA. Nationwide Mutual Ins. Co. v. Darden, --- U.S. ----, ----, 112 S.Ct. 1344, 1350, 117 L.Ed.2d 581 (1992); Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 1476, 91 L.Ed. 1772 (1947). Nevertheless, courts have generally declined to extend the FLSA's minimum wage provision to prisoners who work in prison. See Miller v. Dukakis, 961 F.2d 7, 8 (1st Cir.1992); Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1328 (9th Cir.1991); Alexander v. Sara, Inc., 721 F.2d 149, 150 (5th Cir.1983); Wentworth v. Solem, 548 F.2d 773, 775 (8th Cir.1977); Emory v. United States, 2 Cl.Ct. 579, 580 (1983), aff'd, 727 F.2d 1119 (Fed.Cir.1983); Worsley v. Lash, 421 F.Supp. 556, 556 (N.D.Ind.1976); Sims v. Parke Davis & Co., 334 F.Supp. 774, 787 (E.D.Mich.1971), aff'd, 453 F.2d 1259 (6th Cir.1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1196, 31 L.Ed.2d 254 (1972); Hudgins v. Hart, 323 F.Supp. 898, 899 (E.D.La.1971); Huntley v. Gunn Furniture Co., 79 F.Supp. 110, 116 (W.D.Mich.1948).

Because status as an "employee" for purposes of the FLSA depends on the totality of circumstances rather than on any technical label, courts must examine the "economic reality" of the working relationship. Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 936, 6 L.Ed.2d 100 (1961); Rutherford Food Corp., 331 U.S. at 730, 67 S.Ct. at 1476; Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1535 (7th Cir.1987), cert. denied, 488 U.S. 898, 109 S.Ct. 243, 102 L.Ed.2d 232 (1988). Vanskike places heavy reliance on three recent cases in which courts applied the "economic reality" standard to prisoners and found that they could qualify as "employees" under the FLSA. In Carter v. Dutchess Community College, 735 F.2d 8 (2d Cir.1984), the plaintiff was a prisoner who worked as a teaching assistant at (and was paid by) a local community college. The court held that prisoners were not categorically excluded from the FLSA minimum wage provision and remanded the case for an inquiry into the circumstances of employment. Id. at 15. In Watson v. Graves, 909 F.2d 1549 (5th Cir.1990), the court held that the plaintiffs, who worked for a construction company outside the prison under a work release program, were "employees" of the company and were entitled to the federal minimum wage. Id. at 1554-56. And in Hale v. Arizona, 967 F.2d 1356 (9th Cir.1992), the court applied the FLSA to prisoners who worked for a state entity making products in prison for sale or use outside the prison. Each of these three cases, in examining the "economic reality" of the putative employment relationship, considered four factors set forth in Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir.1983): "whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records."

We do not question the conclusions of Carter, Watson and Hale that prisoners are not categorically excluded from the FLSA's coverage simply because they are prisoners. We must nevertheless reject Vanskike's contention that he is an "employee" for purposes of the FLSA. We also decline to apply Bonnette 's four-factor standard in this situation. Carter and Watson involved situations quite different from the one here. In both cases the prisoners performed work for private, outside employers. In addition, they were given the choice to work rather than being assigned to do so. Here, in contrast, there is no suggestion of an outside employer. Vanskike alleges only that he worked for the Department of Corrections, and that his labor was "forced." We do not think that this is a borderline case like Carter or Watson. The courts have not extended the FLSA's definition of "employee" to cover prisoners who are assigned to work within the prison walls for the prison. Indeed, cases like Carter and Watson appear to have proceeded under the assumption that the FLSA would not apply in such circumstances. 3 The Ninth Circuit's recent decision in Hale presents a situation different from Carter and Watson: the prisoners in Hale worked within the prison walls and for a state agency. That case does not persuade us, however, that Vanskike should be considered an "employee" of the DOC. First, the case appears to be distinguishable, since the prisoners in Hale were actually employed by entities that were deemed "private enterprises" under state law. Second, the decision is in tension with the Ninth Circuit's earlier Gilbreath decision, in which a different panel of that court held that the FLSA does not apply to prisoners working within the prison for a private plasma center (a situation that would seem to present a stronger case for application of the FLSA). 931 F.2d at 1326; id. at 1330-31 (Rymer, J., concurring); see also Hale, 967 F.2d at 1368 (Fletcher, J., dissenting). Finally, to the extent that Hale may rule that a prisoner working within the prison and for the prison is an "employee" of the prison under the FLSA, we respectfully disagree with its conclusion.

Under Illinois law, the DOC is authorized to assign work to prisoners, and to provide wages for the work. The legislature's purpose in authorizing prisoner work assignments is to "equip such persons with marketable skills, promote habits of work and responsibility and contribute to the expense of the employment...

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