Jottings By An Employer's Lawyer

Wednesday, January 19, 2005

No Minimum Wage in the Hoosegow

That's according to Judge Posner and compatriots on the 7th Circuit, deciding an "issue of some novelty, but little difficulty." Bennett v. Frank (7th Cir. 1/19/05) [pdf]. The issue, a suit by prisoners at a private prison under contract with the Wisconsin Department of Corrections claiming that they were entitled to the minimum wage under the FLSA. Just not so, according to Judge Posner, although he does concede "this is so only because of presumed legislative intent and not because of anything in the actual text of the FLSA." The simple facts are:

People are not imprisoned for the purpose of enabling them to earn a living. The prison pays for their keep. If it puts them to work, it is to offset some of the cost of keeping them, or to keep them out of mischief, or to ease their transition to the world outside, or to equip them with skills and habits that will make them less likely to return to crime outside. None of these goals is compatible with federal regulation of their wages and hours. The reason the FLSA contains no express exception for prisoners is probably that the idea was too outlandish to occur to anyone when the legislation was under consideration by Congress.

I need to remember the "it was too outlandish to be considered" argument when faced with a sticky legislative history issue in the future.


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