[Congressional Record Volume 142, Number 102 (Thursday, July 11, 1996)]
[Senate]
[Pages S7762-S7764]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

       By Mr. GRAHAM (for himself, Mr. Reid, Mr. DeWine, Mr. 
     Dorgan, Mr. Mack, Mr. Conrad, and Mr. Bryan):

  S. 1943. A bill to amend the Fair Labor Standards Act of 1938 to 
exempt inmates from the minimum wage and maximum hour requirements of 
such Act, and for other purposes; to the Committee on Labor and Human 
Resources.


       THE FAIR LABOR STANDARDS ACT OF 1938 AMENDMENT ACT OF 1996

  Mr. GRAHAM. Mr. President, with my colleague, Senator Reid, we 
introduce today legislation which will clarify the Fair Labor Standards 
Act and the issue of minimum wage, as it applies to prisoners 
incarcerated in State and local institutions. I send the legislation to 
the desk.
  The PRESIDING OFFICER. The bill will be received and appropriately 
referred.
  Mr. GRAHAM. Mr. President, the main points of this legislation are as 
follows. No. 1, it will exempt prison workers from the minimum wage 
provisions. No. 2, it will put an end to a cascade of lawsuits that our 
States have been faced with by prisoners demanding back wages. It 
enables the effective prison work and employment training programs that 
have been developed within many of our State corrections facilities to 
continue without the fear of these lawsuits.
  Mr. President, I am pleased to be able to cosponsor this legislation 
with my colleague, Senator Reid, who, during

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the last Congress and previously, has brought this issue so effectively 
to our attention. This legislation has engendered bipartisan support 
and today we are joined by Senators Mack, DeWine, Bryan and Dorgan in 
our efforts to correct the application of minimum wage to State 
prisons.
  This is an issue of national concern. Class action lawsuits by 
prisoners demanding backpay at minimum wage are entangling Federal 
courts in many sectors of the country. Florida alone has faced two such 
class action lawsuits in the last 24 months. In 1992, 18 States asked 
Congress for clarification of this issue. Today, 4 years later, we have 
yet to answer their call for help. It seems appropriate that we should 
address this issue in the very week that we have taken action to 
increase the minimum wage in the law.
  Many prisoners participate in job training and work programs which 
provide numerous benefits. This legislation restricts its applicability 
in terms of prohibition from the application of the minimum wage to 
those prison industry programs which are providing goods or services to 
either a local, State, or Federal governmental agency. We are not 
including where there might be the production of products or the 
delivery of services that would be beneficial and therefore in 
competition with commercial, private-sector activities.
  Not only are these activities beneficial in terms of providing 
services which range, in my State, from supplies such as furniture and 
printed materials, to the provision of services which are valuable to 
local, State, or Federal governments, but they also deal with one of 
the major issues that affects recidivism, the likelihood of a person 
upon release from prison returning to a life of crime. Consistently, 
one of the key factors in the likelihood of a prisoner either living a 
life of law and order and production or returning to their previous 
criminal behavior is whether they leave the prison prepared to hold a 
job.

  These programs provide that kind of on-the-job training and 
experience that make prisoners, upon release, more likely to be 
employable, more likely to have the cultural skills, the understanding 
of what it means to go to work every day in order to get and hold a 
job.
  I am very proud that in our State, the recidivism rate among those 
prisoners who have been through our prison industry program is one-
fifth of the recidivism rate of the population as a whole. We want to 
protect these programs by eliminating the prospect that they might be 
subjected to the minimum wage.
  What would happen if the minimum wage were to be made applicable to 
these prison work programs? Again, using the State of Florida as an 
example, it has been estimated that if the State were to lose the class 
action suit that is before it, it would cost millions of dollars in 
backpay and an additional $24 million every year to continue the 
programs as they are currently in place.
  In a time of tight State budgets, there is very little likelihood 
that there would be this $24 million forthcoming, and, therefore, the 
prospect would be that this effective program that is serving so many 
important interests would be terminated.
  So, Mr. President, this legislation is beneficial to the States and 
the communities that are the direct beneficiaries of the products and 
services produced by these prison industries. There is even a greater 
benefit in terms of reducing the likelihood of prisoners, upon release, 
returning to a life of crime and, therefore, being a predator upon 
society.
  But it also gives us a chance, frankly, to eliminate a provision 
which makes us appear to be foolish to the American public. If you were 
to tell the average citizen in New Hampshire, did you know that there 
is an interpretation of the Federal minimum wage law that requires your 
State, if a prisoner is working while they are incarcerated, doing 
something productive, helping prepare themselves for their post-
incarceration life, requiring the State to pay minimum wage to that 
person, in spite of the fact that the State is also providing them a 
place to live, to eat, their medical services, all of the requirements, 
and then to say they have to receive the minimum wage, which is now 
going to be raised over the next 2 years to $5.15 an hour, you would 
first encounter bemusement and then, I think, public anger at what they 
would see to be such a foolish idea.
  So, Mr. President, I hope that, albeit 4 years late, we would respond 
to the request of the States to clarify that we do not intend to apply 
the minimum wage to those persons engaged in prison industries and 
allow the States to continue with this thoroughly rational and 
important part of their corrections program.
  It is my honor to turn the remainder of the time to my colleague and 
cosponsor, Senator Reid.
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I appreciate very much the efforts of my 
colleague. When this matter was first introduced in August 1992, 
Senator Graham was a steadfast supporter of this legislation. He 
indicated that I have been a good advocate of this legislation. I say, 
Mr. President, not good enough. It seems that we should have this in 
law. We have not been able to do that.
  I think it is fair to say that we should put the committee of 
jurisdiction, or committees of jurisdiction, on notice that we are 
going to move forward with this legislation. It is important we do so, 
and if we do not get it done in the committees, then we are going to 
have to do it here on the floor. We have waited too long.
  The legislation that I introduced in 1992 was in response to the 
decision of the Ninth Circuit Court of Appeals that all inmates working 
in correctional institutions and industries in those institutions are 
covered by the Fair Labor Standards Act. That was stunning to me. As my 
colleague from Florida has indicated, this decision is beyond the 
ability to comprehend.
  The decision has been overturned, and the courts around this country 
are confused on this issue, and it calls for a clarification. In fact, 
it is a pending court case in Florida that has brought Senator Graham 
and I to the floor this morning to reintroduce the prison wage bill. 
Clarification is needed, not only for the direction of the courts, but 
to dissuade prisoner lawsuits to recover minimum wage payments for work 
done while in prison.
  If inmates were covered by the Fair Labor Standards Act, they would 
not only be eligible--listen to this--for minimum wage, but it would 
open the door for unemployment compensation for prisoners, it would 
open the door for worker's compensation for prisoners, it would open 
the door for paid vacations for prisoners, it would open the door for 
overtime pay for prisoners. I mean, is this ridiculous?
  If the Federal Government or States are required to pay minimum wage, 
it would mean the end of most prison work programs. We simply would not 
be able to afford them. State governments are already staggering from 
budget deficits. Inmates would lose their job training, in most 
instances, lose their opportunity to produce something during their 
incarceration and lose the incentive to reform themselves and return to 
society. Prisoners would sit idle in their cells. Taxpayers already pay 
for room, board, even cable TV for prisoners. I do not believe they 
want to pay for minimum wage as well.
  Mr. President, I, frankly, would like to go further. I do not think 
they should have cable television. I do not think they should have some 
of the things they have in prison that they do have, but I am going to 
let well enough alone and see if we can move forward on this very 
meaningful legislation.
  We in Congress just spent months, as my colleague has indicated, 
fighting for an increase in the minimum wage. Were we fighting for a 
worker trying to raise a family on $8,500 a year--that is minimum 
wage--or were we fighting for a wage increase for prisoners? I know 
that I was fighting for the working family and not the prisoner who has 
not played by the rules of society and is supposed to be punished, in 
my estimation.
  Some opponents of this bill have raised the question of low-wage 
inmate competition with the private sector. But this issue has already 
been adequately explained by my colleague. This issue has already been, 
I repeat, addressed by the Ashurst-Sumners Act, as well as the Prison 
Industry Enhancement Certification Program. This is only talk.

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  Further, in our bill, we provide specifically that our language does 
not affect programs certified pursuant to the Ashurst-Sumners Act.
  Mr. President, I asked, sometime ago, the General Accounting Office 
to look into this matter, and they rendered a very fine report on 
prison labor. I quote from this report:

       If the prison systems we visited were required to pay 
     minimum wage to their inmate workers and did so without 
     reducing the number of inmate hours worked, they would have 
     to pay hundreds of millions of dollars more each year for 
     inmate labor. Consequently, these prison systems generally 
     regard minimum wage for prison work as unaffordable, even if 
     substantial user fees (e.g.: charges for room and board) were 
     imposed on the inmates.

  They went on to say:

       Prison systems officials consistently identified large-
     scale cutbacks in inmate labor as likely and, in their view, 
     a dangerous consequence of having to pay minimum wage. They 
     believed that less inmate work means more idle time and 
     increased potential for violence and misconduct.

  Therefore, paying minimum wage to prisoners would not only be 
expensive, but dangerous and counterproductive.
  The Fair Labor Standards Act of 1938 was enacted as a progressive 
measure to ensure all able-bodied working men and women a fair day's 
pay for a fair day's work. It was never, never intended to cover 
criminals in our prisons.
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