In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-1959
JAY R. BENNETT and JAMES W. KNIPFER,
Plaintiffs-Appellants,
v.
MATTHEW J. FRANK, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-C-714-S—John C. Shabaz, Judge.
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SUBMITTED DECEMBER 10, 2004—DECIDED JANUARY 19, 2005
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Before POSNER, KANNE, and SYKES, Circuit Judges.
POSNER, Circuit Judge. This appeal presents an issue of
some novelty but little difficulty. The plaintiffs, inmates of
Whiteville Correctional Facility, a private prison (owned by
Corrections Corporation of America) that is under contract
to the Wisconsin Department of Corrections, claim entitle-
ment to the minimum wage provision of the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et seq. All their other claims
have been waived.
The Fair Labor Standards Act is intended for the protec-
tion of employees, and prisoners are not employees of their
2 No. 04-1959
prison, whether it is a public or a private one. So they are
not protected by the Act. Vanskike v. Peters, 974 F.2d 806, 808
(7th Cir. 1992); Tourscher v. McCullough, 184 F.3d 236, 243
(3d Cir. 1999); Villarreal v. Woodham, 113 F.3d 202, 206 (11th
Cir. 1997); Nicastro v. Reno, 84 F.3d 1446 (D.C. Cir. 1996) (per
curiam); Danneskjold v. Hausrath, 82 F.3d 37, 42 (2d Cir.
1996); Hale v. Arizona, 993 F.2d 1387, 1395 (9th Cir. 1993)
(en banc). Oddly, this is so only because of presumed leg-
islative intent and not because of anything in the actual text
of the FLSA. The Act unhelpfully defines “employee” as
“any individual employed by an employer” and defines “em-
ployer” as “any person acting directly or indirectly in the
interest of an employer in relation to an employee and in-
cludes a public agency.” 29 U.S.C. §§ 203(e)(1), (d). There
are some excepted classes of employees, § 203(e)(2), (3), (4),
but prisoners are not among them. Although the minimum
wage provision of the Act applies only to employees engaged
in, or producing goods for, commerce or employed in an
enterprise engaged in or producing goods for commerce,
§ 206(a)(1), we do not know whether Bennett and Knipfer
were engaged in any such activities.
But we have no doubt that the cases we have cited are
correct. People are not imprisoned for the purpose of en-
abling 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 fed-
eral regulation of their wages and hours. The reason the
FLSA contains no express exception for prisoners is prob-
ably that the idea was too outlandish to occur to anyone
when the legislation was under consideration by Congress.
We cannot see what difference it makes if the prison is
private. Ideally, neither the rights nor the liabilities of a state
No. 04-1959 3
agency should be affected by its decision to contract out a
portion of the services that state law obligates it to provide.
Otherwise the “make or buy” decision (the decision whether
to furnish a service directly or obtain it in the market)
would be distorted by considerations irrelevant to the only
thing that should matter: the relative efficiency of internal
versus contractual provision of services in particular
circumstances. But a simpler and more fundamental point is
that employment status doesn’t depend on whether the
alleged employer is a public or a private body. Both public
agencies and private firms have employees. But prisoners
are not employees.
Our conclusion that the FLSA does not apply to Whiteville’s
inmates is reinforced by decisions that hold that a state
prison does not lose its immunity from liability under the
FLSA merely because it has hired a private company to
manage the prison labor. Gambetta v. Prison Rehabilitative
Industries & Diversified Enterprises, Inc., 112 F.3d 1119, 1124-
25 (11th Cir. 1997); Danneskjold v. Hausrath, supra, 82 F.3d at
43-44. A prison’s decision to hire a catering firm to operate
its cafeteria should not influence the entitlements of a
prisoner who works in the cafeteria.
We have no quarrel with Watson v. Graves, 909 F.2d 1549
(5th Cir. 1990), or Carter v. Dutchess Community College, 735
F.2d 8 (2d Cir. 1984), which hold that the FLSA applies to
prisoners working for private companies under work-re-
lease programs. Those prisoners weren’t working as prison
labor, but as free laborers in transition to their expected
discharge from the prison. Unlike our plaintiffs.
AFFIRMED.
4 No. 04-1959
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-19-05