Whether a Federal Prisoner Worker is an "Employee" Within the Meaning of Certain Federal Statutes

Whether a Federal Prisoner Worker is an “Employee” Within the
Meaning of Certain Federal Statutes

A federal prisoner w orker is not an “employee” within the meaning of section 23 of the Toxic Sub­
stances Control Act, section 312 of the Clean Air Act Amendments of 1977, or section 3 of the
Occupational Safety and Health Act o f 1970.
September 19, 1988
M e m o r a n d u m O p in io n fo r t h e A c t in g A s s is t a n t A t t o r n e y G e n e r a l
C r im in a l D iv is io n

This memorandum responds to the July 17, 1987, request of former Assistant
Attorney General Weld to Assistant Attorney General Markman that the Federal
Legal Council resolve the question of whether a federal inmate who complains
about his working conditions is an “employee” within the meaning of section 23
of the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2622, and of sec­
tion 312 of the Clean Air Act Amendments of 1977 (“CAAA”), 42 U.S.C.
§ 7622.1Subsequently, on August 4,1987, Assistant Attorney General Markman
referred this matter to the Office of Legal Counsel for resolution.2 Following the
referral of this matter to our Office, we were asked by Victor D. Stone, Senior
Legal Advisor, Criminal Division, to also address the question of whether a fed­
eral inmate is an “employee” within the meaning of section 3 of the Occupational

1See Memorandum for Stephen J. Markman, Assistant Attorney General, Office of Legal Policy, from William
F. Weld, Assistant Attorney General, Criminal Division, Re Request for Federal Legal Council Resolution i/i In­
teragency Jurisdictional Disagreement Between the Bureau of Prisons and the Department o f Labor (July 17,1987)
(“Weld Memo”). This request for a Federal Legal Council opinion was made in light of the Bureau of Prison’s dis­
agreement with a ruling by a United States Department of Labor administrative law judge, holding that a federal
inmate is an “employee” for purposes of TSCA and the CAAA Plumley v Federal Bureau o f Prisons, No. 86-
CAA-6 (Dec. 31, 1986). Subsequently, on July 20, 1987, the Labor Department entered into a settlement agree­
ment with the prisoner whose complaint had given nse to the administrative law judge’s ruling. Assistant Attorney
General W eld’s Memorandum stated thal, in light of the then-imminent settlement of the Plumley case, “[a] reso­
lution [of this legal issue] by the Federal Legal Council, therefore, is urgently requested before future lawsuits are
Filed which lead to new discovery demands, fees and costs, attorney time, and senous agency conflict ” Weld Memo
at 2.
2 Memorandum for Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, from Stephen J.
Markman, Assistant Attorney General, Office of Legal Policy, Re • Interagency Jurisdictional Disagreement Be­
tween the Bureau o f Prisons and the Department of Labor (Aug. 4, 1987). Assistant Attorney General Markman’s
memorandum stated that “the Federal Legal Council [is not authorized] to resolve legal disputes submitted to the
Attorney G eneral. . . . [T]he resolution of interagency disputes is usually within your Office’s [the Office of Le­
gal Counsel’s] jurisdiction.”

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Safety and Health Act of 1970 (“OSHA”), 29 U.S.C. § 652. For the reasons set
forth below, we conclude that a federal inmate is not an “employee” within the
meaning of these statutory provisions.3
Discussion
Former Assistant Attorney General Weld’s original request required that we
address the scope of statutory provisions prohibiting employers from discrimi­
nating against “whistleblowing” employees who participate in enforcement pro­
ceedings brought under TSCA and the Clean Air Act (“CAA”). Because the lan­
guage of 15 U.S.C. § 2622 and 42 U.S.C. § 7622 is virtually identical, we analyze
these two statutes in tandem. After discussing these two statutory provisions, we
turn to the meaning of “employer” and “employee” as defined in section 3 of
OSHA.
Both the TSCA provision, Pub. L. No. 94-469, § 23,90 Stat. 2044 (1976) (cod­
ified at 15 U.S.C. § 2622), and the CAAA provision, Pub. L. No. 95-95, § 312,
91 Stat. 783 (1977) (codified at 42 U.S.C. § 7622), begin by setting forth identi­
cal clauses prohibiting an “employer” from “discharg[ing]... or otherwise dis-
criminat[ing]” (with respect to “compensation, terms, conditions, or privileges
of employment”) against an “employee” who “commencefs],” “testifie[s],” “as-
sist[s],” or “participate[s]” in TSCA and CAA proceedings directed against the
employer. 15 U.S.C. § 2622(a); 42 U.S.C. § 7622(a).4 In order to remedy pro­
hibited discharges or other acts of discrimination, these two statutes authorize
“[a]ny employee” to “file . . . a complaint with the Secretary of Labor alleging
such discharge or discrimination.” 15 U.S.C. § 2622(b)(1); 42 U.S.C.
§ 7622(b)(1). If the Secretary finds a violation, he is empowered to order the vi­
olator “to reinstate the complainant to his former position together with the com­

3 The Environmental Protection Agency concurs in our view that section 23 of TSCA and section 312 of the
CAAA do not apply to federal inmates Letter for John O. McGinnis, Deputy Assistant Attorney General, Office
of Legal Counsel, from Lawrence J. Jensen, Acting General Counsel, Environmental Protection Agency (Aug. 11,
1988). In a letter to this Office, the Department of Labor expressed no opinion on the merits of the question whether
federal inmates are “employees” within the meaning of OSHA, TSCA, and the CAAA. Letter for John O. McGin­
nis, Deputy Assistant Attorney General, Office of Legal Counsel, from George R. Salem, Solicitor of Labor (Aug.
30, 1988).
4 42 U.S.C.§ 7622(a) states.
No employer may discharge any employee or otherwise discriminate against any employee with re­
spect to his compensation, terms, conditions, or privileges of employment because the employee (or
any person acting pursuant to a request of the employee) —
(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a pro­
ceeding under this chapter or a proceeding for the administration or enforcement of any requirement
imposed under this chapter or under any applicable implementation plan;
(2) testified or is about to testify in any such proceeding; or
(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in
any other action to carry out the purposes of this chapter
15 U.S.C § 2622(a) is m all matenal respects identical. In the context of section 2622(a), “chapter” refers to chap­
ter 53 of title 15 of the United States Code (‘Toxic Substances Control”), 15 U.S C §§ 2601-2629; in the context
of § 7622(a), “chapter” refers to chapter 85 of title 42 of the United States Code (“Air Pollution Prevention and
Control”). 42 U.S.C. §§ 7401-7642.

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pensation (including back pay), terms, conditions, and privileges of his employ­
ment,” plus compensatory damages. 42 U.S.C. § 7622(b)(2)(B); see also 15
U.S.C. § 2622(b)(2)(B) (materially identical provision).5
Neither TSCA nor the CAA (including the 1977 CAAA), nor the legislative
histories of those statutes, defines the terms “employee” and “employer.” Nev­
ertheless, the meaning of these words as they apply to the employer-employee
relationship can be drawn implicitly from the requirements set forth in 15 U.S.C.
§ 2622 (“TSCA provision”) and 42 U.S.C. § 7622 (“clean air provision”), sum­
marized above. Both the TSCA provision and the clean air provision seek to pre­
vent an employer from discharging or otherwise discriminating against a
“whistleblowing” employee (i.e., an employee who brings the employer’s envi­
ronmental health and safety derelictions to light). In particular, the two provi­
sions prohibit discrimination with respect to “terms, conditions, or privileges of
employment.” Furthermore, both provisions provide that an employee wrong­
fully discriminated against shall be reinstated to his former position, subject to
the same compensation (including back pay), terms, conditions, and privileges
he previously enjoyed. It follows that both the TSCA provision and the clean air
provision contemplate “traditional” contractually based employer-employee re­
lationships, in which an employee obtains an agreed-upon compensation and cer­
tain privileges by virtue of his employment. In other words, the TSCA and clean
air provisions envision an employment relationship in which an “employee” is
“[a] person in the service of another under any contract of hire, express or im­
plied, oral or written,” Black’s Law Dictionary 471 (5th ed. 1979) (emphasis
added).
Section 3 of OSHA, 29 U.S.C. § 652, sets forth definitions applicable to chap­
ter 15 of title 29 of the United States Code. Section 3(5) defines an “employer”
as “a person engaged in a business affecting commerce who has employees, but
does not include the United States or any State or political subdivision of a State.”
Section 3(6) states that an “employee” is “an employee of an employer who is
employed in a business of his employer which affects commerce.” The latter de­
finition plainly comports with the understanding that an “employee” is “[a] per­
son in the service of another a non-government employer under any contract of
hire, express or implied, oral or written.” Black’s Law Dictionary at 471.
In contrast, federal prisoners clearly are not parties to a contractually based
employer-employee relationship as contemplated in TSCA, the CAAA, or
OSHA. A federal prisoner is “committed, for such term of imprisonment as the
sentencing court may direct, to the custody of the Attorney General of the United
States, who shall designate the place of confinement where the sentence shall be
served.” 18 U.S.C. § 4082(a). Thus, since a federal prisoner is, by definition,

3 An aggrieved employee or employer may obtain review of the Secretary’s order in the United States Court of
Appeals for the circuit in which the violauon of subsection (a) allegedly occurred. 15 U.S.C. § 2622(c); 42 U.S.C.
§ 7622(c). Under the TSCA provision, the Secretary ushair file a civil action in United States district court when­
ever a person has failed to comply with a subsection (b)(2) order 15 U S.C § 2622(d) The Secretary “may" file
such an action under the parallel CAAA provision 42 U S.C. § 7622(d).

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“[o]ne who is deprived of his liberty," Black’s Law Dictionary at 1075 (empha­
sis added), he cannot freely enter into a contract of employment. That federal
prisoners are legally incapable of entering into “any contract of hire” is under­
scored by the fact that the work they perform involves involuntary servitude. See
Emory v. United States, 2 Cl. Ct. 579,580 (rejecting federal prisoner’s claim that
his being required to work amounts to unconstitutional “slave labor,” since “the
thirteenth amendment, in abolishing slavery and involuntary servitude, specifi­
cally adds the phrase ‘except as a punishment for crime whereof the party shall
have been duly convicted,’ which covers the plaintiff[] [prisoner’s] situation”),
affd, 727 F.2d 1119 (Fed. Cir. 1983).
An examination of the terms under which federal prisoners are assigned work
reinforces the conclusion that they are not “employees.” The work rendered by
federal prisoners is controlled by Federal Prison Industries (“FPI”), which “shall
determine in what manner and to what extent industrial operations shall be car­
ried on” by federal prisoners. 18 U.S.C. § 4122(a) (emphasis added). FPI’s “board
of directors shall provide employment for all physically fit inmates in the United
States penal and correctional institutions,” in a manner that minimizes competi­
tion with private industry. 18 U.S.C. § 4122(b) (emphasis added). The “employ­
ment” provided by FPI, however, does not establish a contractual employer-em­
ployee relationship between FPI and federal prisoners. As indicated by the
language of 18 U.S.C. § 4122, a federal prisoner worker does not voluntarily en­
ter into “any contract for hire”; rather, he is assigned work by FPI. Thus, in par­
ticular contrast to the “employees” covered by TSCA and the clean air provision,
and by OSHA, a federal prisoner worker enjoys no “privileges” of employment.6
Furthermore, unlike a typical employer, who is contractually bound to pay wages,
FPI merely “is authorized [but not required] to employ” funds under its control
“in paying, under rules and regulations promulgated by the Attorney General,
compensation to inmates” who are assigned work. 18 U.S.C. § 4126(c) (empha­
sis added). Payments made by FPI are not a matter of contractual right. Instead,
they are rendered “solely by congressional grace and governed by the rules and
regulations promulgated by the Attorney General.” Sprouse v. Federal Prison In­
dustries, Inc., 480 F.2d 1, 4 (5th Cir.), cert, denied, 414 U.S. 1095 (1973). See
also Garza v. Miller, 688 F.2d 480 (7th Cir. 1982), cert, denied, 459 U.S. 1150
(1983) (federal prisoner has no proprietary or protected liberty interest in his job
or his compensation).
Since the assignment of work to federal prisoners does not involve the type of
employer-employee relationships envisioned in TSCA, the CAAA, and OSHA,
we believe it follows logically that the protections those three statutes afford “em­

6 As described above, the TSCA and clean air provisions prohibit discrimination with “regard to terms, condi­
tions, or privileges of employment,” and provide for the reinstatement of employees who are discharged due to dis­
crimination, subject to the same “terms, conditions, or privileges ” Federal prisoners, however, do not enjoy “priv­
ileges” of employment, since they must cany out the tasks set for them by FPI and adhere to the conditions specified
by FPI. In addition, since federal prisoners are required to work (FPI “shall provide employment for all physically
fit inmates”), they are not, of course, subject to discrimination through discharge

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ployees” should not be deemed to extend to federal prisoners. Consistent with
this conclusion, it is apparent that the TSCA and clean air “whistleblower” pro­
tections, as well as OSHA’s definition of an “employee,” logically should not be
applied to federal prisoner workers.
Consistent with our conclusion that federal prisoners should not be viewed as
“employees,” Congress enacted a specific statutory provision, 18 U.S.C. § 4126,
authorizing compensation for injuries suffered by federal prisoners in federal pen­
itentiaries. In contrast, private-sector employees receive compensation for work­
place injuries under state worker’s compensation laws, and federal employees
are compensated for injuries on the job under the terms of Federal Employees’
Compensation Act, 5 U.S.C. §§ 8101-8173.7 This divergence in statutory treat­
ment suggests that Congress, in providing for the compensation of injured pris­
oner workers, viewed them as neither private-sector employees nor federal em­
ployees.
Our conclusion also draws additional support from judicial and administrative
holdings. In the case of OSHA, an Acting Area Director of the Occupational
Safety and Health Administration has opined that OSHA’s statutory protections
do not apply to federal prisoners. In a November 27,1984, letter to Warden Calvin
Edwards of the Federal Correctional Institution at Milan, Michigan, OSHA Act­
ing Area Director Jerry M. Gillooly specifically conceded that OSHA’s juris­
diction does not extend to federal prisoners working in the prison’s sewage lift
station and paint shop:

Although OSHA exercises jurisdiction in Federal agency safety
and health matters, we do not believe our authority extends to pris­
oners, inmates, or other institutionalized persons as there does not
appear to be an employer!employee relationship between the
agency and the individual. We, therefore, defer to your responsi­
bility for the safety and health of inmates in your care.

Gillooly letter at 1 (emphasis added). In short, consistent with our analysis, OSHA
has on at least one occasion conceded that federal prisoners do not fall within the
ambit of employer-employee relationships covered by OSHA.
While no judicial or administrative decision deals with the applicability of
TSCA or the CAA to federal prisoners, determinations bearing on other federal
statutes are instructive. For example, the United States Claims Court has held that
a federal prisoner is not an “employee” within the meaning of the Fair Labor
Standards Act of 1938 and thus is not entitled to receive the minimum wages
specified in that Act. Emory v. United States , 2 Cl. Ct. 579, affd, 727 F.2d 1119

7 While certain provisions of 18 U.S.C. § 4126 are patterned after the FederaJ Employees’ Compensation Act,
the Supreme Court has recognized that “differing circumstances of prisoners and non-pnsoners have led to differ­
ences in the way the two statutes protect their beneficiaries.” Berry v. Federal Prison Industries, Inc., 440 F. Supp.
1147, 1150 (N.D. Cal 1977) (citing United States v. Demko, 385 U.S. 149, 152 (1966)).

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(Fed. Cir. 1983).8 Consistent with that holding, the Claims Court recently ruled,
in Amos v. United States, 13 Cl. Ct. 442 (1987), that federal prisoners supervised
by cook foremen are not “employees” within the meaning of the Fair Labor Stan­
dards Act. Citing precedents, the Claims Court’s decision, 13 Cl. Ct. at 445-46,
contains a good discussion of why federal prisoners who are paid a nominal
amount for work performed are not “employees”:
Clearly, the inmates provide a service to the government and are
paid a minimal amount. Yet inmates are technically and realisti­
cally not employees. “Economic reality is the test of employment
as bearing on the applicability of the FLSA.” Souder v. Brennan,
367 F. Supp. 808 (D.D.C. 1973). The economic reality is that in­
mates are convicted criminals incarcerated in a penitentiary. Sims
v. Parke Davis & Co., 334 F. Supp. 774, 787 (E.D. Mich. 1971),
affd, 453 F.2d 1259 (6th Cir. 1971), cert, denied, 405 U.S. 978,
92 S. Ct. 1196, 31 L.Ed. 2d 254 (1972). They are not civil ser­
vants. Inmates are not free to set their wages through negotiation
or bargaining; they may not form unions or strike; and they may
not quit work. Their service in vocational programs and their right
to compensation is solely by legislative grace, primarily for their
own benefit and rehabilitation. Sprouse v. Federal Prison Indus­
tries, Inc., 480 F.2d 1 (5th Cir. 1973), cert, denied, 414 U.S. 1095,
94 S. Ct. 728, 38 L.Ed. 2d 553 (1973). They are not employed
within the meaning of the federal FLSA regulation; thus, they are
not employees.
Administrative determinations dealing with the status of prisoner workers com­
port with these case-law principles. In a January 4, 1945, letter to the Director of
the Bureau of Prisons, the Acting Deputy Commissioner of the Internal Revenue
Service opined that the withholding provisions of the Individual Income Tax Act
of 1944 were inapplicable to the payments paid to federal prisoner workers. That
letter stressed that the “nominal sums” paid federal prisoners for the work they
perform “are gratuitous allowances provided by Federal law for the labor required
and are not wages arising out of a relationship of employment within the mean­
ing of the provisions of the Internal Revenue Code.” Letter at 2 (emphasis added).
8 The court in Emory cited in support of its holding the case of Alexander v. Sara, Inc , 505 F. Supp. 1080 (M.D.
La. 1981), o ff d, 721 F.2d 149 (5th Cir. 1983), which held that state prisoner inmates who participated in a blood
plasma program operated by a pnvate corporation were not “employees" for purposes of the Fair Labor Standards
Act, since the ultimate control and regulation of the inmates remained with prison officials. According to the Emory
court, although “[t]he Alexander case involved state prisoners,.. the same principle is pertinent in a case involv­
ing a federal pnsoner.” 2 Cl. Ct. at 580 n.l. At least four other federal district court decisions have held that pris­
oners are not “employees” within the meaning of the Fair Labor Standards Act. Huntley v. Gunn Furniture Co , 79
F. Supp. 110 (W.D. Mich. 1948); Hudgins v Hart, 323 F. Supp. 898 (E.D. La. 1971); Sims v. Parke Davis & Co ,
334 F. Supp. 774 (E.D. Mich.), affd, 453 F.2d 1259 (6th Cir. 1971), cert denied, 405 U.S. 978 (1972); Worsley v.
Lash, 421 F. Supp. 556 (N.D. Ind 1976). All of these decisions emphasized that prisoner workers are not parties
to an employer-employee relationship.

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 The Treasury Department reaffirmed the non-employee status of federal prison
inmates in Rev. Rul. 75-325, 1975-2 C.B. 415. According to that Ruling, “the
relationship between the inmates and Federal Prison Industries, Inc., arises from
the incarceration of the inmates on one hand and from the legal duty of the Cor­
poration to provide rehabilitative labor on the other. It is not the legal relation­
ship of employer and employee.’’ Id. (emphasis added). Summarizing this ju­
risprudence, the Criminal Division recently opined “that the nominal sums
awarded to federal inmates employed in the federal correctional system do not
constitute employee wages or other gross income for” income tax withholding
purposes, since “the classic employer-employee relationship does not exist in the
federal prison industry setting, and... the nominal sums awarded to working in­
mates represent[] a gratuitous allowance or rehabilitative incentive payment
rather than wages or other earned income.” Memorandum for W. Lawrence Wal­
lace, Assistant Attorney General, Justice Management Division, from Stephen S.
Trott, Assistant Attorney General, Criminal Division, Re: IRS Reporting Re­
quirements for Inmates Employed by Federal Prison Industries, Inc. at 2 (Sept.
2, 1986) (emphasis added).
Taken together, these holdings provide substantial support for the proposition
that federal laws affecting “employees” should not (absent specific language cov­
ering federal prisoners) be applied to federal prisoner workers, since those work­
ers are not involved in a traditional employer-employee relationship with FPI.
Accordingly, strong precedents drawn from other areas of federal law suggest
that employee-related provisions of the CAA, TSCA, and OSHA are not applic­
able to the federal prison setting.
In summary, the TSCA and clean air whistleblower provisions, as well as
OSHA’s definition of “employee,” apply to individuals who are parties to “em-
ployer-employee” relationships, as generally understood. In contrast, federal pris­
oner workers are not parties to contractual employment relationships; rather, they
are subject to involuntary servitude. Thus, federal prisoners do not enjoy the rights
commonly enjoyed by employees, such as the right to wages. It therefore follows
that the TSCA whistleblower provision, the clean air whistleblower provision,
and the OSHA definition of “employee,” do not apply to federal prisoners.
Conclusion
For the foregoing reasons, we conclude that a federal inmate is not an “em­
ployee” within the meaning of 15 U.S.C. § 2622,42 U.S.C. § 7622, or 29 U.S.C.
§ 652.
D o u g l a s W . K m ie c
Acting Assistant Attorney General
Office of Legal Counsel

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