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| Rep. Emanuel Cleaver |
While courts grapple with whether incarcerated workers are employees under the Fair Labor Standards Act and thus entitled to minimum wage and other protections, congressional Democrats plan to make another attempt to update the statute to answer that question.
The Fair Wages for Incarcerated Workers Act would amend the FLSA to clarify that the term "employee" includes incarcerated workers in publicly and privately operated detention centers. This would entitle those people to minimum wage.
"I don't see this as the wishes of a way-out liberal," said Rep. Emanuel Cleaver, D-Mo., who previously introduced the House version of the bill in 2023. Sen. Cory Booker, D-N.J., introduced the Senate version. No Republicans signed on to those bills as co-sponsors.
Cleaver's bill would first need to get through the House Committee on Education and Workforce. A spokesperson for Rep. Tim Walberg, R-Mich., the committee's chairman, declined to comment.
Cleaver, a former mayor of Kansas City, Missouri, has been in Congress since 2005. He spoke with Law360 on May 2 about the legislation and why he believes it is important. This interview has been edited for length and clarity.
The Fair Wages for Incarcerated Workers Act would extend minimum wage protections to incarcerated workers. Why is it important to do that?
Sen. Cory Booker and I talked about this and we actually had a conversation about it yesterday at lunch. And for us, it is so critically important if we actually want to cut down the recidivism rates.
When people are convicted of wrongdoing, they should pay for the crime they committed. But I believe that incarcerated people are still human beings. They should be treated with a high level of dignity that all human beings deserve. And so that means they deserve fair wages for the work that they do. And it's time that we really stop the exploitation that goes on with incarcerated Americans.
I said when I introduced the legislation that we need to end inhumane exploitation of incarcerated laborers. And Congress has the responsibility and the power to establish and enforce a federal minimum wage for workers in correctional facilities nationwide.
Our legislation would allow us to establish a federal minimum wage of $7.25 for incarcerated workers. And that would be nationwide. And we eliminate some wage deductions to ensure that these workers will no longer have their income preemptively taken away to cover the cost of court-imposed fees, board, lodging.
Why did you include that in the legislation, that these facilities shouldn't be taking back the wages that the workers make?
If they did that in the world, it would be stealing, embezzlement. The prisons would be committing crimes. They're committing crimes against people who have lost almost all of their rights and people who can't fight back, because there are very few people who are going to feel sorry for somebody in prison.
It's like, we put you in prison and we work you and then we take the money and you leave prison, what do they give them, $100 or $150 to get a bus ticket back home? It's not right.
This is absolutely just something that is humane that we are not doing, and I'm embarrassed about it. We had some difficulty getting people to understand that, our colleagues, but I think there's a growing awareness.
You mentioned that you discussed the legislation with Sen. Booker recently. Do you plan to reintroduce the bill?
Yes. That was the whole point of our conversation.
How optimistic are you that it would survive this time around?
Can I tell you a quick story? I've heard this story almost all of my life. It's first from my great-grandpa, Albert Cleaver. He said that when the Confederate troops were coming through Texas, they had a little slave village in Pine Hill, Texas. It's a little town. Most people are related, Cleavers or Fullers, even today.
Word reached the little village where the slaves were living, and they were told that the Confederate Army's coming. And so a lot of the men ran to the hills, the women did likewise, trying to survive.
But there was an elderly woman who went into her little shack and came out with a broom. And she stood right there in the middle of the road as the approaching Confederate Army was traveling.
And the captain stopped his horse a few feet from her. He had a big smile on his face. In fact, he was almost laughing. And he said, "Old woman, you need to get out of the road. What do you think you're going to do with that broom? You think you can stop slavery or stop this war with that broom?"
And she said, "No, sir, I don't think I can. But I can let you know where I stand." The captain and his battalion went around her.
I think sometimes even if it's difficult to get something approved through Congress, we need to make sure that the people in Congress and the people around the country know where we stand.
--Editing by Orlando Lorenzo.
Workers Behind Bars is a special series from Law360 exploring the push to end subminimum wages and forced labor for detained and incarcerated workers and the labor laws central to this dispute. Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.
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