by Christopher Zoukis and Matt Clarke

Washington State Attorney General Bob Ferguson filed a lawsuit in superior court against The GEO Group in September 2017, alleging the private prison contractor had violated the state’s minimum wage laws by paying immigrant detainees $1 per day to perform work at the company’s Northwest Detention Center (NWDC) in Tacoma.

NWDC houses up to 1,575 immigrant detainees until the resolution of their deportation cases; GEO has operated the facility under a contract with Immigration and Customs Enforcement (ICE) since 2005. The lawsuit demands that GEO pay the state minimum wage to detainee workers and divest any ill-gotten gains.

According to Ferguson’s suit, the company uses a “voluntary” work program at the facility that “rewards” detainee for their labor at a rate of $1 per day. In some cases, snacks and food are provided in exchange for work. ICE’s most recent National Detention Standards, released in 2011, require that detainees be paid at least $1 per day if they perform work at detention facilities. Ferguson argues that GEO Group must pay such workers the state’s minimum wage, which is currently $11 per hour.

“A multi-billion dollar corporation is trying to get away with paying its workers $1 per day,” Ferguson stated in a press release. “That shouldn’t happen in America, and I will not tolerate it happening in Washington. For-profit companies cannot exploit Washington workers.”

Washington’s prison system does not pay minimum wage for work performed by prisoners in state facilities. But it is within its rights to require private prisons to do so, argued Assistant Attorney General Marsha Chien, since labor costs saved in state prisons accrue to the benefit of taxpayers, while savings at a for-profit prison directly benefit the company.

Less than a week after Ferguson’s lawsuit, another complaint was filed in federal court by former NWDC detainee Chao Chen. Chen also accuses GEO Group of violating the law by paying detainees $1 per day for their labor. His is one of several cases against GEO over its detainee payment program, which Chen seeks to consolidate by granting class-action status to his claim demanding back pay for all NWDC detainees who have worked for GEO since 2014. See: Chen v. The GEO Group, Inc., U.S.D.C. (W.D. Wash.), Case No. 3:17-cv-05769-RJB.

Similar litigation was filed last year by detainees at a GEO Group-operated detention facility in Aurora, Colorado. That suit claimed the work program amounted to forced labor; in response, GEO officials expressed concern over their potential liability.

“No company can ‘easily afford’ litigating a purported 60,000 member class-action for monetary relief,” the firm’s attorneys wrote in a Colorado court filing. “GEO faces incalculable monetary claims that target policies required by its government contract.”

But according to a Seattle Times op-ed, Attorney General Ferguson’s lawsuit is based on the “very agreement the federal government has with the GEO Group” – which requires the company to operate NWDC in a manner that complies with local and state laws.

In December 2017, U.S. District Court Judge Robert Bryan ruled against GEO’s motion to dismiss the case, which argued that paying NWDC detainees minimum wage would subject the firm to federal sanctions for employing undocumented immigrants.

“Even if, as Defendant argues, the provisions of the Washington Minimum Wage Act are construed as ‘sanctions,’ they would not be imposed on account of [GEO] hiring unauthorized aliens, but rather because of the failure to pay the prevailing minimum wage,” Bryan wrote.

He also ruled against another GEO motion claiming that Washington officials lacked authority over the wages paid to immigrant detainees at NWDC.

Judge Bryan said he was unable to rule on two other motions to exempt GEO from the state’s minimum wage – one claiming that detainees were not forced to work, and another arguing that paying minimum wage would overburden the federal government. See: State of Washington v. The GEO Group, Inc., Superior Court for Pierce County (WA), Case No. 17-2-11422-2.

On February 9, 2018, the Tenth Circuit Court of Appeals upheld the certification of two classes of immigration detainees who were forced by GEO to labor without pay or to “volunteer” to work for $1 per day in the Aurora, Colorado case.

Nine immigrant detainees held at the GEO-operated Aurora Detention Facility filed a federal civil rights lawsuit alleging they were forced to clean common areas without pay in violation of the Trafficking Victims Protection Act, 18 U.S.C. § 1589, and were paid $1 per day for “voluntary” labor in other areas of the facility in violation of Colorado’s unjust enrichment law, a common law equitable theory of recovery. The two classes certified by the district court totaled about 67,000 people, and GEO filed an interlocutory appeal.

The Tenth Circuit noted that its decision was limited to whether the class certification was an abuse of discretion. The lawsuit centered on the facility’s sanitation policy and Voluntary Work Program (VWP).

Under the sanitation policy, detainees were required to clean the common areas of their housing units on a rotating basis without compensation. Refusal to perform cleaning assignments could result in a range of disciplinary sanctions, including solitary confinement for up to 72 hours, loss of commissary, loss of job, restriction to the housing unit or a reprimand or warning.

Detainees who participated in the VWP performed such jobs as food services, painting, laundry services, cutting hair, and stripping and waxing floors. They worked from two to eight hours a day and were paid $1 per day.

The Tenth Circuit found that both classes satisfied the requirements of commonality, typicality, superiority and predominance. Thus, the district court did not abuse its discretion by certifying the classes. Further, the Court of Appeals held that each class had common questions that allowed for class-wide proof of causation from common circumstantial evidence, and the fact that damages would have to be individually calculated did not defeat class certification. Accordingly, without reaching the merits of the case, the appellate court affirmed the certification of both classes.

“This ruling shifts the power from a huge corporation to vulnerable detainees,” stated Washington, D.C. attorney David Lopez, who represented the class members. “With that power, detainees will be able to challenge long-standing practices that have allowed GEO to exploit detainee labor while pocketing taxpayer dollars.” See: Menocal v. The GEO Group, Inc., 882 F.3d 905 (10th Cir. 2018).

Meanwhile, in Washington State, Attorney General Ferguson’s lawsuit is one of several efforts to push back from the friendly reception by public officials that greeted the opening of NWDC in 2000. GEO acquired the facility in a 2005 takeover of Correctional Services Corp. (CSC), the detention center’s original private contractor.

In 2017, the City of Tacoma, Washington adopted new zoning regulations which would prohibit NWDC from operating as a private detention center. GEO Group filed suit to block the zoning ordinance from taking effect in March 2018, accusing the city of “animosity toward current federal immigration policy.”

GEO’s current contract with ICE to operate NWDC expires in September 2018, though it provides for as many as seven one-year extensions. Similar lawsuits over low wages paid to immigrant detainees also have been filed against private prison operator CoreCivic (formerly Corrections Corporation of America).

Both GEO and CoreCivic are profiting handsomely from ICE contracts to house immigrant detainees, and have spent millions in lobbying and campaign contributions on the federal level to secure and retain those contracts. [See: PLN, June 2016, p.56]. 

Sources: Reuters, Associated Press, Seattle Times, Mother Jones, www.atg.wa.gov, www.sacbee.com, www.muckrock.com, www.denverpost.com