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Immigrant detainees’ fight for minimum wage from for-profit jail now in jury’s hands

“If it looks like work, sounds like work and acts like work, it’s work,” Washington state Assistant Attorney General Marsha Chien told jurors during arguments Tuesday.

TACOMA, Wash. (CN) — Attorneys arguing whether immigrant detainees in a voluntary work program at a for-profit jail in Washington state should be paid minimum wage rather than $1 a day delivered their closing arguments Tuesday.

Washington Attorney General Bob Ferguson sued GEO Group, which operates the Northwest Detention Center in Tacoma, in 2017, claiming it unjustly profited from a voluntary work program in violation of state law setting minimum wage — $12 at the time the lawsuit was filed. A former detainee filed a separate class action on similar claims and seeking back pay, which was consolidated with the state’s case for trial.

GEO, one of the largest private prison providers in the country and operator of the Northwest ICE Processing Center since 2005, has claimed detainees are not employees and thus not entitled to minimum wage. The company has also asserted that the state can’t require it to pay minimum wage to detainees when Washington state prisoners are not paid minimum wage for similar work.

The first trial in the case ended in a mistrial after jurors could not reach a verdict during three days of deliberations. That trial took place via Zoom video conference while the second trial, which began Oct. 12 and spanned 11 days, was conducted in person.

Attorneys spent much of the morning Tuesday sparring over proposed jury instructions, noting concerns about confusing jurors as they approached a verdict. As the parties parsed the language of the document, U.S. District Judge Robert Bryan tried to clarify with GEO’s attorneys how they could justify paying detainees less than minimum wage.

“We don’t have to justify it,” said attorney Wayne Calabrese, who is a former GEO vice chairman, president and chief operating officer. “Would we like it to pay more? Of course.”

During closing arguments, Assistant Attorney General Marsha Chien hammered her claim that GEO built the voluntary work program, determined job descriptions and assigned duties that fulfilled its contractual obligations to ICE to clean the facility, feed detainees and launder clothing. She also highlighted testimony from detention center staff that GEO would adjust the number of work program slots depending on its needs at the facility, such as the footprint of the facility growing or painting for an upcoming inspection.

“GEO worries about the details so the government doesn’t have to in exchange for hundreds of millions of dollars,” Chien told jurors.

Lawyers representing GEO attempted to distance the company from the work program and any employment relationships with detainees. During trial, ICE administrators refused to testify and the agency also declined to aid GEO’s legal defense.

“ICE created it and ICE controls it,” Calabrese said of the work program.

Calabrese referred to detainees in the work program as volunteers doing activities and repeatedly emphasized the phrases federal detainees, federal program and federal facility in arguing against the applicability of Washington’s minimum wage law. He also said GEO’s contract with ICE prohibited it from employing detainees and only required it to pay them at least $1 a day.

But Chien pushed back.

“GEO has the option for more than a dollar a day,” said Chien, who also pointed to GEO’s millions of dollars in profits and analyses that it would take 85 full-time employees to substitute for the daily work of upward of 400 detainees.

However, the question before jurors is whether GEO permitted the detainees to work because the matter of the state’s minimum wage law was already agreed upon.

“If it looks like work, sounds like work and acts like work, it’s work,” Chien told jurors.

Attorney Jamal Whitehead, representing the class of detainees, echoed Chien's argument.

“There is no such thing as a volunteer for a private company like GEO,” Whitehead said.

Similar cases have been filed against GEO and other for-profit prison companies in other states, including New Mexico, Colorado and California.

Earlier this month, GEO Group argued for the dismissal of the Washington state case based on the Ninth Circuit Court of Appeals’ decision to block California’s ban on private immigration jails, which held that states are barred from regulating federal government policy.

GEO has also sued Washington state over a similar ban on for-profit jails that was signed into law this spring. In 2015, ICE extended its contract with GEO in the Evergreen State through 2025.

That case has been stayed until the Ninth Circuit issues a mandate regarding the California ruling.

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