Friday, December 8, 2017

Historic Court Orders Allow State of Washington and Chao Chen to Sue GEO for Minimum Wage Violations

And listen below to November 15, 2017 oral argument before the 10th Circuit Appellate Court panel reviewing class certification in Menocal, et al. v. The GEO Group,  case no. 17-1125, before MATHESON, BACHARACH, and McHUGH, Circuit Judges. 

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New York Times

Federal district court judge Robert Bryan in the Western District of Washington State on December 6, 2017 filed two orders denying GEO's motions to dismiss the latest lawsuits seeking damages for violating employment laws.

For the first time, a federal judge has taken a plain text approach to the 1950 statute authorizing compensation to people in custody under immigration laws and noted that the absence of any appropriations since 1978, as required by the authorizing statute, means there is no law authorizing exemptions from state or federal minimum wage laws.

In responding to Chao Chen's complaint, GEO's attorneys argued that federal laws preempted actions against GEO brought under state laws.  In particular, GEO claimed, the 1986 Immigration Reform and Control Act (IRCA), the federal management of immigration detention, and the federal policy goals served by GEO's work program for U.S. citizens and residents detained under immigration laws preempted any claims under state law challenging the employment of immigrants.  

The judge found that IRCA did not expressly preempt state action on wages.  He also rejected the more general claim about preemption: 
Defendant has assembled a hodgepodge of federal statutes and argues that Congress intends to regulate the field of immigration detention generally, including detainee wages. See Dkt. 16 at FN16, citing 8 U.S.C. §§1103, 1225, 1226, 1226a, 1231, 1324a, 1555(d). Surveying the authority from Defendant, it cannot be said, with any degree of clarity, that Congress intends to occupy the field of detainee wages. At best, Defendant has highlighted general sources of authority for ICE agency action, but as discussed below, ICE has not created a regulatory scheme preempting state law through its policies, including the Voluntary Work Program. (Doc 28, p. 9).  
He concluded that "There is no showing that Congress intended for its general appropriations after 1979 to delegate to ICE the authority to preempt state law as to detainee wages" (Doc. 28, p. 11).

Judge Bryan found that the conflict preemption argument was "premature" because it referenced facts and these were inadmissible for a motion to dismiss, and he found the "obstacle" preemption argument "wandering and opaque" (Doc. 28, p. 11).

Of special note is that Judge Bryan rejected GEO's invitation to follow non-precedential analysis in Alvarado Guevara v. INS as taken up in other recent cases, including Menocal, which allowed the lawsuit to proceed based on the allegations of violating the prohibitions against forced labor int eh Trafficking Victims Protection Act and the common law prohibiting unjust enrichment : "Neither Menocal, Whyte, nor Alvarado is binding precedent, and in this Court’s view, extending the logic of Alvarado to interpret this State’s statutory exception to include federal detainees moves beyond interpretation to legislation" (Doc. 28, p. 14).  In other words, just because it might be the case that Congress hates immigrants and a majority at some point may have wanted them to be exploited, there's no law that actually permits this, and there are laws that require firms to pay people according to the minimum wage laws, including those without legal authorization to be paid to work.

In response to a similar complaint filed by the State of Washington last September, and reviewed during the same oral argument, Judge Bryan rejected the same arguments he rejected in the Chen case, and also challenged GEO's conflation of historical practice with legislative intent: 
Admittedly, at first blush the issue of preemption would seem to favor Defendant, given the long history of federal legislation and agency action in the area of immigration detention generally. After peeling back the rhetoric and examining the actual statutes and regulations, on the issue of detainee wages, an area of traditional state prerogative, the Court cannot find evidence of congressional intent—either express or implied—sufficient to overcome the presumption against preemption. Defendant’s motion to dismiss based on preemption should be denied. (Doc. 29, pp. 11-12).
The oral argument for this case is presently being transcribed. (Andrew Free, my FOIA attorney, presented the oral argument for the Plaintiff.)  As soon as it is available, I will post it here.  For a more extended analysis of the laws and legislative history that support Judge Bryan's analysis, please see Jacqueline Stevens, "One Dollar Per Day, The Slaving Wages of Immigration Jail: 1942 to Present," Georgetown Immigration Law Journal (2015/16).

In my more recent research, I encountered clear evidence that the federal government did not in earlier time frames treat those in custody under immigration law as prisoners.  Nor did it require janitorial or other work. A New York Times Magazine article in 1950 urging Ellis Island no longer hold new immigrants noted the "civil servants" who maintained the facility, including cleaning personal quarters, and the 10 cents/hour then paid for kitchen volunteers:
Unarmed guards, freedom of communication, second helpings at mealtime, a school for the children, an excellent hospital for the sick, a constant effort on the part of the officials to make themselves approachable, if not always informative -- all these are signs we are not aping Hitler's concentration camp methods. Or Stalin's labor camps, either. No one has to work at Ellis Island. (A.H. Ruskin 1950, p. 78).
Ruskin noted as well, "The authorities do not require any of the immigrants or deportees to make their beds or clean their rooms. Some do. Most don't. When they don't, regular civil service cleaners do the job" (Ruskin 1950, 75).  (This research is for my contribution to a volume on prison work and includes research on the transition from these boarding arrangements for immigrants to the implementation of a private prison system for housing people in the 1980s; these operational changes were not accompanied by legal changes.)

Menocal et. al. v The GEO Group, case no. 17-1125
See Washington Post article for more on Menocal and class certification last spring.
Also on point for the litigation against GEO's profiteering from the labor of those in its custody was the November oral argument before the Tenth Circuit's three-judge panel in November.  You can listen to that here.  The judges posed some sharp questions of the GEO attorney, even provoking an unsolicited claim that since the folks GEO held were willing to work for $1/day, we should infer that they are never being forced to work because $1/day is effectively nothing.

A judge references another class action precedent on typicality and states:
Isn't it similar here, that there's an inference that's very easy to be made here, that when the people were detained and they're under a policy where they can be disciplined, including in isolation, segregation, that they worked because they didn't want to be punished?
GEO's counsel replies:
It was a simple matter in CVC but it's not here...Here's it's a very human calculus. We're talking about detainees who, say in the housekeeping program, might be put on a list of six to clean once a week or something like that. They make a decision each time whether they're going to consent to work or not.
Another judge interjects:
Or eat, or be put in isolation, right? I mean, slaves had a choice, right? Your point in answering Judge McHugh is they had a choice, right? Well, the sanitation policy didn't give them a choice. Now, they may have had a choice of whether we are going to face the consequences of violating the sanitation policy. But the sanitation policy, would you agree, was mandatory.

The sanitation policy, yes, the sanitation policy is something all detainees are subject to. However, what we're talking about at the end of the day is whether these plaintiffs are entitled to damages in a court, whether a court is going to order GEO to pay damages.
JUDGE: That may be later down the road, on the merits.    
GEO: The inference the district court drew was unacceptable. 
JUDGE: I don't think it was the district court that drew the actual inference. The district court said a jury could draw the inference. Am I missing something there? 
GEO:  That's fair, your honor.

The second exchange of note went as follows:
JUDGE:  Is there anything in the record that suggests the existence of an individualized proof that some of the detainees worked for reasons other than the policy?
GEO [Referring to Plaintiff declarations]:  Every one of them contain two paragraphs. One is a paragraph that says, "I performed housecleaning chores because I didn't want to be put in disciplinary segregation." The second paragraph says, I volunteered to work one or more jobs in the Volunteer Work Program. Does that make sense? Does that make sense that the same detainees would be volunteering to step up and work in a variety of jobs in food services and laundry for a dollar a day but yet at the same time say they only performed occasional housekeeping chores... 
JUDGE:  They're different programs.
GEO:   On the ground there's really not a difference. Does the dollar a day make a complete difference? To me it's really kind of a lawyerish distinction.

When I played the MP3 last week for my students they were dumbstruck and we had to listen to that section again.  Sure, for the GEO lawyer who has $10 in change in his car seats $1 = 0, but for the folks who need the $1 to buy some ramen noodles or deodorant, it's a wage and they use it to purchase commodities.  GEO is basically admitting that they are effectively paying nothing to people in exchange for their labor.  Rather than express shame and self-loathing for his role in this scheme, GEO's attorney suggests the availability of labor for $1/day means GEO has lucked into happy slaves and they prefer to work and the six people chosen to clean each day allows each individual detained the sought for opportunity of rotating through their shifts to alleviate their boredom.

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