Meredith Mast, Associate Member, Immigration and Human Rights Law Review
I. Introduction
From facility maintenance to natural disaster relief, prison labor is deeply embedded in various sectors of the American economy.[1] Prison programs are frequently marketed as opportunities for post-release preparedness and rehabilitation.[2] However, the inherently punitive nature of prison labor coupled with gaps in workplace protection schemes more often than not leave incarcerated workers in a particularly vulnerable position, without adequate protections or avenues for remedy, severely undermining the claimed benefits of such programs. Specifically, in the United States, significant gaps in the Fair Labor Standards Act and the Occupational Safety and Health Act leave the larger part of the carceral work population vulnerable to exploitation and further human rights violations.
This Blog explores the lack of adequate workplace protections and remedies for prison workers through a human rights lens. Part II provides background on the prevalence and conditions of prison labor in the United States. Part III discusses the international human rights standards applicable to incarcerated labor and the lack of protections at the domestic level. Finally, Part IV concludes by highlighting the need for increased protections and remedies for incarcerated workers. The current domestic regime on workplace safety and protections in the United States excludes an overwhelming majority of incarcerated workers, thereby subjecting an already-vulnerable working population to a heightened risk of exploitation and human rights violations.
II. Background
A. Prison Labor in the United States Today
Nearly every state and federal prison in the United States operates its own form of a carceral work program.[3] Together, both systems employ over 65% of the incarcerated population—nearly 800,000 individuals.[4] The vast majority of individuals are placed on assignments that are essential to the maintenance and operation of the facility where they are housed, ranging from janitorial, laundry, and food services to electrical and plumbing services.[5] Only around 3% of individuals work for private sector employers, while the remaining 17% perform work for government-run businesses.[6] As such, federal, state, and local governments are the primary beneficiaries of prison labor.[7] By utilizing the underpaid or unpaid labor of their incarcerated workers to maintain the facilities in which they are housed, these governments greatly offset the cost of operating their prison systems.[8] In 2021, for example, the value of the goods and services produced by state prison workers exceeded $2 billion.[9]
When implemented with adequate conditions and protections, providing incarcerated individuals with the ability to work while serving their sentence creates the potential for positive outcomes.[10] Perhaps the most promising among them is the correlation between working while incarcerated and a reduced likelihood of recidivism.[11] Ideally, work opportunities further provide opportunities for vocational training, personal development, and other skills essential to reintegration and finding employment upon release.[12] Research also indicates that individuals with at least some amount of savings upon release are less likely to recidivate than those who have nothing.[13] Yet, without sufficient protections and oversight, current practices often fail to fully achieve these benefits.
B. Pay and Conditions
The realities of modern prison programs contradict many of the claimed benefits.[14] Despite federal and state prisons marketing their work programs as rehabilitative, the overwhelming majority of work performed involves menial and repetitive duties that provide workers with little to no marketable skills or relevant training.[15] Further, many vocational programs train their workers on outdated equipment that is no longer used outside prison walls.[16] To illustrate the disparity, a report out of Louisiana found that a third of incarcerated workers received training for jobs that were projected to decrease in the labor market.[17]
Research suggests that paying incarcerated workers fair wages could produce a reduction in recidivism, furthering the overall goals of rehabilitation.[18] Yet, the average minimum wage for non-industry prison jobs is between 13 and 52 cents per hour, with the majority of maintenance workers falling on the lower end of that range.[19] Seven states require incarcerated individuals to work for no compensation.[20] For inmates who are assigned to private companies outside the confines of the prison, the Prison Industry Enhancement Certification Program requires those companies to pay the local prevailing wage for similar work.[21]
However, the wages pocketed from labor both within and outside prisons are typically significantly minimized, as prisons deduct as much as 80% of individuals’ wages to cover costs like room and board, court-imposed fines, taxes, and restitution.[22] Individuals are often left with half of their gross pay and an inability to afford basic necessities or contribute to their post-release reintegration efforts.[23] Further exacerbating the problem, the cost of items available in commissaries is steeply marked up—in extreme cases, as much as 600 percent—compared to typical retail prices.[24]
In addition to inadequate compensation, the physical conditions of carceral work programs raise serious concerns about worker safety and protection. Several reports suggest that many of the injuries sustained in carceral work programs are largely preventable with adequate training or equipment.[25] Yet, it is not uncommon for incarcerated workers to be assigned to jobs for which they have minimal to no training, or are required to work without protective gear considered standard in civilian workplaces.[26] A large portion of workers report that illness, injury, or a physical inability to work will not excuse them from work duties, further compounding the overarching lack of health and safety precautions.[27]
Underlying these concerns is also the punitive character of prison work. With an exacerbated power balance between carceral workers and their employers, workers in this context lack the traditional bargaining power of civilian working relationships.[28] As such, prison workers often accept dangerous or unsafe work assignments to avoid additional punishment or to receive favorable reductions in their security classification.[29]
Despite working in conditions ripe for abuse and exploitation, prison workers are largely excluded from workplace protections and remedies afforded to their free worker counterparts. When adequate protections are lacking, prison work programs are easily transformed into breeding grounds for coercion and manipulation, putting workers’ safety and human rights at risk.
III. Discussion
The lack of workplace protections for the overwhelming majority of incarcerated workers in the United States raises significant human rights concerns. Although prison labor is not inherently incompatible with international human rights law, the practice produces considerable problems when it fails to afford adequate workplace protections to incarcerated workers.[30] Gaps in workplace protection laws in the United States—specifically in the Fair Labor Standards Act and the Occupational Safety and Health Act—leave an already-vulnerable prison work population at a heightened risk for human rights violations.
A. Basic Human Rights Standards for Prison Labor
The practice of prison labor in itself is not necessarily contrary to current human rights standards.[31] Issues arise, however, when prison work programs fail to adequately recognize the basic rights and dignity of their carceral workers. A number of international human rights treaties and conventions shape the standards governing prison labor.
The Universal Declaration of Human Rights (UDHR), prohibiting exploitative workplace practices, draws no differentiation between free and imprisoned workers.[32] Rather, the prohibition applies to all individuals “without distinction of any kind.”[33] The International Covenant on Civil and Political Rights (ICCPR), ratified by the United States in 1992, establishes that the purpose of a penitentiary system shall focus on the “reformation and social rehabilitation” of prisoners.[34] Although the ICCPR allows for the sentencing of imprisoned individuals to hard labor, it nonetheless codifies additional safeguards to ensure that such sentences do not violate fundamental principles of human dignity.[35] Specifically, in General Comment No. 21, the United Nations (U.N.) Human Rights Committee emphasized the especially vulnerable position of individuals deprived of their liberty and noted that “respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons.”[36] Yet, in the United States, significant gaps between the workplace protections for civilian and incarcerated workers place the latter at significant risk of exploitation and human rights violations.
B. The Exclusion of Prison Laborers from Workplace Protection
The Fair Labor Standards Act (FLSA) and the Occupational Safety and Health Act (OSH Act) provide civil workers with basic rights and workplace protections.[37] However, both Acts are severely limited in the context of prison labor, resulting in the exclusion of the majority of incarcerated workers from coverage.
1. The Fair Labor Standards Act
The FLSA was enacted in 1938 to “protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers.’”[38] Most courts, however, have declined to include incarcerated workers in the definition of covered employees under FLSA, thereby excluding them from federal minimum wage protections.[39]
Considering that the FLSA is contextualized around an employer-employee relationship with traditionally understood bargaining and contracting power, some courts have taken the position that prisoners are isolated from the national economic sphere upon detention.[40] When prisoners are assigned to work within the prison for training and rehabilitative purposes, courts reasoned that the working relationship between the government and the individual stems not from a bargained-for exchange of labor, but rather from incarceration itself.[41]
In Henthorn v. Dept. of Navy, for example, the D.C. Circuit Court held that a prerequisite to determining if an inmate qualifies as an employee for FLSA purposes is whether they freely contracted with a non-prison employer to sell his labor.[42] Under this analysis, over 80% of the carceral work population—those performing maintenance work for the institution in which they are housed—is excluded from FLSA’s minimum wage protection, regardless of whether their work is voluntary.
In cases where incarcerated workers are employed by private companies outside the prison, the courts have applied an “economic reality test” to determine whether workers are entitled to a minimum wage.[43] They consider 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.[44] However, only a small handful of case have been successful in achieving employee status at the summary judgment or motion to dismiss stage.[45]
In VanSike v. Peters, the Seventh Circuit reasoned that the overarching purpose of the FLSA—to ensure a minimum standard of living— is inapplicable to work performed inside prisons because “[p]risoners’ basic needs are met in prison, irrespective of their ability to pay.”[46] Yet, this characterization severely diminishes the definition of basic needs and distorts the economic reality of prison living conditions. A majority of incarcerated workers reported to the American Civil Liberties Union and Global Human Rights Clinic that their prison wages were insufficient to afford basic necessities.[47] To illustrate, prisons often eliminate costs by serving inmates meals with low nutritional value, leaving many individuals to supplement their meals with food items from the commissary.[48] Such purchases typically result in expenses far greater than the average wages earned by incarcerated workers.[49]
Although prison labor generates significant savings for state and federal institutions, the punitive nature of carceral work strips prison work programs of both value and minimum wage protection under the FLSA. Denying similar FLSA treatment for carceral work further deviates from the dictates of the UDHR and the ICCPR to respect and not exploit the inherently vulnerable position of incarcerated workers.[50] The lack of bargaining power and traditional employer-employee relationship that excludes most prison workers from FLSA coverage are among the very same concerns that make incarcerated workers vulnerable to exploitation and in need of protection in the first place. In short, the very reasons these workers are excluded from coverage highlight the urgent need for such protection.
2. The Occupational Safety and Health Act
The overarching purpose of the OSH Act is to ensure safe and healthy working conditions for the nation’s labor force.[51] The Occupational Safety and Health Administration (OSHA) is vested with enforcement powers to receive worker complaints, inspect workplace conditions, and issue citations for employers’ safety violations.[52] The enforcement process, however, can be prolonged.[53]
Similar to the FLSA, the protections of the OSH Act apply only to those statutorily defined as employees.[54] While the Act itself does not explicitly exclude prison workers from coverage, its protections do not extend to individuals employed by a state or political subdivision of a state. A standard interpretation letter from OSHA clarified that the exclusion of state employees includes those working in state and local correctional facilities—including both paid and unpaid positions.[55] However, incarcerated individuals employed outside the prison may avail themselves of the applicable protections available to civilian workers employed in similar conditions, such as filing hazard reports.[56] But considering that only about 3% of inmates are employed in private industry positions, the vast majority of incarcerated workers remain uncovered by the OSH Act.[57]
Over twenty states recognize the gap in OSHA coverage for state employees and employers and have adopted their own health and safety plans.[58] Yet among these states, only a small number offer limited protection to inmates assigned to private industry work placements, while most appear to remain unresponsive to complaints filed by incarcerated workers.[59]
Even in the minority of circumstances where OSHA maintains jurisdiction over prison workers placed in conditions similar to those outside the prison, an advance notice requirement placed on the agency severely undermines any true enforcement power.[60] At the federal level, the Bureau of Prisons requires OSHA inspectors to provide advance notice of any inspection.[61] The Bureau also maintains control over witness interviews in the course of inspection and may even instruct OSHA officials to simply leave the facility.[62] As a result, incarcerated workers have a strong disincentive to report workplace safety concerns, and prison officials are given an incentive and notice period to cover up dangerous work conditions.[63]
Insufficient OSHA protections deprive incarcerated workers of an effective mechanism to raise concerns about workplace safety or hold correctional administrators accountable.[64] Although inmates may file complaints or grievances within the prison system, these reports must go through layers of cumbersome internal bureaucracy and can result in retaliation against the complaining inmate.[65] An overwhelming majority of incarcerated workers demonstrate a reluctance submit grievances out of a fear that it will lead to additional punishment.[66] The lack of protections also, in a quite circular fashion, disincentives prisoners from utilizing the internal grievance system to report such retaliation.[67]
In essence, the punitive nature of prison work contextualizes the increased risk of human rights violations and the need for greater protection in this area. Rather than being afforded protections similar to those of their civilian equivalents, the greater part of the incarcerated workforce is largely left without remedy or recourse in the face of dangerous or exploitative working environment.
C. Difficulties in Expanding Protections
International human rights standards require incarcerated workers to have the same workplace protections as free laborers.[68] The United States, however, has failed to adequately extend domestic protections to some of its most vulnerable workers in the prison system. In the context of the FLSA, courts have been largely reluctant to interpret the Act as covering the majority of work performed in prisons. While notable progress has been made in expanding protections for workers employed outside prison walls, courts’ unwillingness to find that the majority of the prison workforce falls under the traditional definition of an “employee” makes any forthcoming expansion of FLSA protections in this area unlikely.[69] As such, unless and until courts are willing to undertake a broader reading of who is covered under the FLSA, the only feasible option for expanding coverage may be an expansion of the definition of “employees” directly from the Department of Labor.[70]
Similar difficulties are connected to the expansion of workplace protections in the context of the OSH Act. With the exception of individuals employed outside of the prison, the OSH Act — and its state-level equivalents — fails to effectively protect the majority of prison laborers performing work inside prison facilities.[71] Despite guidance that the Act should be interpreted broadly, both federal and state-level OSHA agencies have failed to interpret the Act as covering the larger part of the prison labor force.[72] To more sufficiently protect the human rights and safety interests of incarcerated workers, OSHA must issue new directives and standard interpretations to include under the scope of coverage institutional and maintenance work performed within prisons.
In sum, the current gaps in the United States’ workplace protection regime leaves the vast majority of the incarcerated workforce without protection and without redress in the face of exploitation or abuse. The failure to expand FLSA and OSH Act protections to cover such workers runs in stark opposition to human rights standards requiring equal protections for both free and incarcerated workers. Given the vulnerable position of incarcerated workers, along with courts’ hesitancy to recognize prisoners performing institutional or maintenance work as employees, the protection of prisoners’ workplace safety and human rights must stem from the agencies which oversee the construction and implementation of the domestic workplace regime.
IV. Conclusion
Allowing incarcerated individuals to participate in work programs holds great potential for rehabilitation and reintegration efforts. However, due to the penal nature of prison work and the extreme power imbalance between carceral workers and their superiors, incarcerated workers are in an especially vulnerable position in the workplace. To fully realize, rather than undermine, the rehabilitative potential of prison work programs, incarcerated workers must be afforded increased protections and avenues for remedies under the FLSA and OSH Act. Without adequate avenues to raise concerns about inadequate compensation or unsafe conditions, prison work programs compromise the human rights of their workers in an environment ripe for abuse and exploitation.
[1] Robin McDowell & Margie Mason, Prisoners in the US are part of a hidden workforce linked to hundreds of popular food brands, AP News (Jan. 29, 2024), https://apnews.com/article/prison-to-plate-inmate-labor-investigation-c6f0eb4747963283316e494eadf08c4e [https://perma.cc/SU2G-2D6U].
[2] Ben Jarman & Catherine Heard, Labouring Behind Bars: Assessing International Law on Working Prisoners, Inst. for Crime & Just. Pol’y Rsch., at 11 (Nov. 2023), https://www.prisonstudies.org/sites/default/files/resources/downloads/labouring_behind_bars.pdf [https://perma.cc/Q2PG-F7RE].
[3] McDowell & Mason, supra note 1.
[4] Captive Labor: Exploitation of Incarcerated Workers, Am. C.L. Union & Univ. of Chicago L. Sch. Glob. Hum. Rts. Clinic (2022), https://assets.aclu.org/live/uploads/publications/2022-06-15-captivelaborresearchreport.pdf [hereinafter Captive Labor]; McDowell & Mason, supra note 1.
[5] Captive Labor, supra note 4, at 26.
[6] Nina Mast, Force prison labor in the “Land of the Free,” Econ. Pol’y Inst. (Jan. 16, 2025), https://www.epi.org/publication/rooted-racism-prison-labor/#:~:text=Though%20incarcerated%20people%20work%20long,collectively%20bargain%20over%20wages%20and [https://perma.cc/9YLU-U9TV].
[7] Captive Labor, supra note 4, at 27.
[8] Id.
[9] Id. at 17.
[10] Input to the Special Rapporteur on contemporary forms of slavery as affecting currently and formerly incarcerated people, Penal Reform Int’l, at 4 (Apr. 11, 2024), https://www.ohchr.org/sites/default/files/documents/issues/slavery/sr/cfis/incarcerated-people/subm-contemporary-forms-slavery-cso-penal-ref-pri-pri.pdf [https://perma.cc/N99T-98VB] [hereinafter Input to the Special Rapporteur].
[11] Captive Labor, supra note 4, at 18.
[12] Input to the Special Rapporteur, supra note 10, at 4.
[13] Captive Labor, supra note 4, at 6
[14] Jarman & Fair, supra note 2, at 11.
[15] Captive Labor, supra note 4, at 16.
[16] Id.
[17] Id. at 17.
[18] Mast, supra note 6.
[19] Captive Labor, supra note 4, at 10.
[20] Id. at 6.
[21] Ryanne Bamieh, Note, The New Abolition: The Legal Consequences of Ending All Slavery and Involuntary Servitude, 59 Harv. C.R.-L.L. Rev.245, 283 (2024).
[22] Captive Labor, supra note 4, at 11.
[23] Lan Cao, Made in the USA: Race, Trade, and Prison Labor, 43 N.Y.U. Rev. L. & Soc. Change 1, 21 (2019); Captive Labor, supra note 4, at 11.
[24] Cao, supra note 23, at 20; Elizabeth Weill-Greenberg & Ethan Corey, Locked In, Priced Out: How Commissary Price-Gouging Preys on the Incarcerated, The Appeal (Apr. 17, 2024) https://theappeal.org/locked-in-priced-out-how-much-prison-commissary-prices/ [https://perma.cc/CRN3-LWE7].
[25] Captive Labor, supra note 4, at 12–13.
[26] Id.
[27] Id. at 50.
[28] Jarman & Fair, supra note 2, at 6, 15.
[29] Jarman & Fair, supra note 2, at 21-22; Anastasia Christman & Han Lu, Workers Doing Time Must Be Protected by Job Safety Laws, Nat’l. Emp. L. Project, at 18 (Apr. 2024), https://www.nelp.org/app/uploads/2024/04/Report_Incarcerated_Workers_Disasters_v2.pdf [https://perma.cc/PUE3-FT4C].
[30] International Covenant on Civil and Political Rights, art. 8, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
[31] Id.
[32] G.A. 217 (III) A, Universal Declaration of Hum. Rts., art. 23 (Dec. 10, 1948) [hereinafter UDHR]; Captive Labor, supra note 4, at 82.
[33] UDHR, supra note 32, arts. 2, 23 (“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind[.]”).
[34] ICCPR, supra note 30, art. 10.
[35] Id., arts. 8, 10.
[36] U.N. Doc. HRI/GEN/1/Rev.1, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, at 33 (Jul. 29, 1994) (emphasis added) [hereinafter General Comments].
[37] McDowell & Mason, supra note 1.
[38] 29 U.S.C. § 202(a); Barrentine v. Ark.-Best Freight System, Inc., 450 U.S. 728, 739 (1981).
[39] Sanders III v. Hayden, 544 F.3d 812, 814 (2008) (“Prison and jail inmates are not covered by the FLSA.”)
[40] Henthorn v. Dep’t. of Labor, 29 F.3d 682, 686 (D.C. Cir. App. 1994).
[41] VanSike v. Peters, 974 F.2d 806, 810 (7th Cir. 1992).
[42] Henthorn, 29 F.3d at 686.
[43] Jarman & Fair, supra note 2, at 11.
[44] Bonnette v. Cal. Health and Welfare Agency, 704 F.2d 1465 (9th Cir. 1983); Jarman & Fair, supra note 2, at 11.
[45] Megan Hauptman, The Health and Safety of Incarcerated Workers: OSHA’s Applicability in the Prison Context, 37 ABA J. Lab. & Emp. L. 71, 80 n.61 (noting that no reported cases have ever been decided in favor of the incarcerated worker at the final judgment stage).
[46] VanSike, 974 F.2d at 810.
[47] Captive Labor, supra note 4, at 11.
[48] Hauptman, supra note 45, at 81-82.
[49] Id. at 82.
[50] UDHR, supra note 29; ICCPR, supra note 31.
[51] 29 U.S.C. § 651(b).
[52] Hauptman, supra note 45, at 76.
[53] Id. at 77.
[54] 29 U.S.C. § 652(5)-(6).
[55] OSHA, Standard Interpretation 1975.5, OSHA Does Not Have Jurisdiction Over State Employees or Inmates (Dec. 16, 1992), https://www.osha.gov/laws-regs/standardinterpretations/1992-12-16-1 [https://perma.cc/EX3C-69GF] [hereinafter Standard Interpretation].
[56] OSHA, Directive FAP 01-00-002, Federal Agency Safety and Health Programs With the Bureau of Prisons, U.S. Department of Justice (Apr. 10, 1995), https://www.osha.gov/enforcement/directives/fap-01-00-002 [https://perma.cc/N9C9-LM3X].
[57] Mast, supra note 6.
[58] Hauptman, supra note 45, at 85–86; State Plans Frequently Asked Questions, OSHA, https://www.osha.gov/stateplans/faqs [https://perma.cc/MBS5-DRA8] (last visited Feb. 15, 2025).
[59] Hauptman, supra note 45, at 86.
[60] Cao, supra note 23, at 32–33.
[61] Christman & Lu, supra note 29, at 18.
[62] Id.
[63] Cao, supra note 23, at 33 (“The Government Accountability Office produced a report in 2010 that documented how a federal prison system deliberately hid dangerous practices and toxic work conditions from OSHA at its supposedly green electronics-waste recycling center.”).
[64] Hauptman, supra note 45, at 89.
[65] Id.
[66] Captive Labor, supra note 4, at 68.
[67] Hauptman, supra note 45, at 85, 89; Christman & Lu, supra note 29, at 19.
[68] See ICCPR, supra note 30, art. 8; General Comments, supra note 36.
[69] Meredith Curtis Goode, ACLU Celebrates Win for the Right to Fair Wages for Workers who are Incarcerated Case Challenges Prison Labor Rules Rooted in Slavery, ACLU Md. ( May 10, 2024), https://www.aclu-md.org/en/press-releases/aclu-celebrates-win-right-fair-wages-workers-who-are-incarcerated-case-challenges#:~:text=%E2%80%93%20In%20a%20win%20for%20the,are%20working%20outside%20prison%20walls [https://perma.cc/8MP5-HQ27].
[70] See Megan Russo, Regulating Prison Labor, The Regul. Rev. (Oct. 20, 2021), https://www.theregreview.org/2021/10/20/russo-regulating-prison-labor/ [https://perma.cc/TBT2-ZTTC].
[71] Standard Interpretation, supra note 55.
[72] Hauptman, supra note 45, at 75, 88.
