You are on page 1of 71

Case 2:17-cv-04271-MMB Document 1-3 Filed 09/26/17 Page 1 of 2

Exhibit B
Case 2:17-cv-04271-MMB Document 1-3 Filed 09/26/17 Page 2 of 2

NATIONAL COLLEGIATE ATHLETIC BUCKNELL UNIVERSITY DREXEL UNIVERSITY


ASSOCIATION 701 Moore Avenue 3141 Chestnut Street
700 W. Washington Street Lewisburg, PA 17837 Philadelphia, PA 19104
Indianapolis, IN 46206-6222

DUQUESNE UNIVERSITY FAIRLEIGH DICKINSON UNIVERSITY LA SALLE UNIVERSITY


600 Forbes Avenue 1000 River Road 1900 W Olney Avenue
Pittsburgh, PA 15282 Teaneck, NJ 07666 Philadelphia, PA 19141

LAFAYETTE COLLEGE LEHIGH UNIVERSITY MONMOUTH UNIVERSITY


730 High Street 27 Memorial Drive W 400 Cedar Avenue
Easton, PA 18042 Bethlehem, PA 18015 West Long Branch, NJ 07764

RIDER UNIVERSITY ROBERT MORRIS UNIVERSITY SETON HALL UNIVERSITY


2083 Lawrenceville Road 6001 University Boulevard 400 South Orange Avenue
Lawrence Township, NJ 08648 Pittsburgh, PA 15108 South Orange, NJ 07079

SAINT FRANCIS UNIVERSITY SAINT JOSEPHS UNIVERSITY ST. PETERS UNIVERSITY


117 Evergreen Drive 5600 City Avenue 2641 John F Kennedy Boulevard W
Loretto, PA 15940 Philadelphia, PA 19131 Jersey City, NJ 07306

VILLANOVA UNIVERSITY UNIVERSITY OF DELAWARE PENNSYLVANIA STATE UNIVERSITY


800 E Lancaster Avenue Newark, DE 19716 University Park
Villanova, PA 19085 State College, PA 16801

UNIVERSITY OF PITTSBURGH RUTGERS, STATE UNIVERSITY OF TEMPLE UNIVERSITY


4200 Fifth Avenue NEW JERSEY 1801 N Broad Street
Pittsburgh, PA 15260 57 U.S. 1 Philadelphia, PA 19122
New Brunswick, NJ 08901
Case 2:17-cv-04271-MMB Document 1-4 Filed 09/26/17 Page 1 of 5

Exhibit C
Case 2:17-cv-04271-MMB Document 1-4 Filed 09/26/17 Page 2 of 5

ABILENE CHRISTIAN UNIVERSITY AMERICAN UNIVERSITY BAYLOR UNIVERSITY


1600 Campus Court 4400 Massachusetts Avenue NW 1311 S 5th Street
Abilene, TX 79601 Washington, DC 20016 Waco, TX 76706

BELMONT UNIVERSITY BETHUNE-COOKMAN UNIVERSITY BOSTON COLLEGE


1900 Belmont Boulevard 640 Dr. Mary McLeod Bethune Boulevard Chestnut Hill, MA 02467
Nashville, TN 37212 Daytona Beach, FL 32114

BOSTON UNIVERSITY BRADLEY UNIVERSITY BRIGHAM YOUNG UNIVERSITY


Boston, MA 02215 1501 W Bradley Avenue Provo, UT 84602
Peoria, IL 61625

BRYANT UNIVERSITY BUTLER UNIVERSITY CAMPBELL UNIVERSITY


1150 Douglas Turnpike 4600 Sunset Avenue 143 Main Street
Smithfield, RI 02917 Indianapolis, IN 46208 Buies Creek, NC 27506

CANISIUS COLLEGE CHARLESTON SOUTHERN UNIVERSITY COLGATE UNIVERSITY


2001 Main Street 9200 University Boulevard 13 Oak Drive
Buffalo, NY 14208 North Charleston, SC 29406 Hamilton, NY 13346

CREIGHTON UNIVERSITY DAVIDSON COLLEGE UNIVERSITY OF DAYTON


2500 California Plaza 405 N Main Street 300 College Park
Omaha, NE 68102 Davidson, NC 28035 Dayton, OH 45469

UNIVERSITY OF DENVER DEPAUL UNIVERSITY UNIVERSITY OF DETROIT MERCY


2199 S University Boulevard 2400 N Sheffield Avenue 4001 McNichols Road
Denver, CO 80208 Chicago, IL 60614 Detroit, MI 48221

DRAKE UNIVERSITY DUKE UNIVERSITY ELON UNIVERSITY


2507 University Avenue Durham, NC 27708 100 Campus Drive
Des Moines, IA 50311 Elon, NC 27244

UNIVERSITY OF EVANSVILLE FAIRFIELD UNIVERSITY FORDHAM UNIVERSITY


1800 Lincoln Avenue 1073 N Benson Road Bronx, NY 10458
Evansville, IN 47714 Fairfield, CT 06824

FURMAN UNIVERSITY GARDNER-WEBB UNIVERSITY GEORGE WASHINGTON UNIVERSITY


3300 Poinsett Highway 110 S Main Street 2121 Eye Street, NW
Greenville, SC 29613 Boiling Springs, NC 28017 Washington, DC 20052

1
Case 2:17-cv-04271-MMB Document 1-4 Filed 09/26/17 Page 3 of 5

GEORGETOWN UNIVERSITY GONZAGA UNIVERSITY GRAND CANYON UNIVERSITY


3700 O Street NW 502 E Boone Avenue 3300 W Camelback Road
Washington, DC 20057 Spokane, WA 99202 Phoenix, AZ 85017

HAMPTON UNIVERSITY UNIVERSITY OF HARTFORD HIGH POINT UNIVERSITY


100 E Queen Street 200 Bloomfield Avenue 833 Montlieu Avenue
Hampton, VA 23668 West Hartford, CT 06117 High Point, NC 27262

HOFSTRA UNIVERSITY COLLEGE OF THE HOLY CROSS HOUSTON BAPTIST UNIVERSITY


1000 Fulton Avenue 1 College Street 7502 Fondren Road
Hempstead, NY 11550 Worcester, MA 01610 Houston, TX 77074

HOWARD UNIVERSITY UNIVERSITY OF THE INCARNATE WORD IONA COLLEGE


2400 Sixth Street NW 4301 Broadway Street 715 North Avenue
Washington, DC 20059 San Antonio, TX 78209 New Rochelle, NY 10801

JACKSONVILLE UNIVERSITY LIBERTY UNIVERSITY LIPSCOMB UNIVERSITY


2800 University Boulevard N 1971 Liberty University Drive 1 University Park Drive
Jacksonville, FL 32211 Lynchburg, VA 24502 Nashville, TN 37204

LONG ISLAND UNIVERSITY, BROOKLYN LOYOLA MARYMOUNT UNIVERSITY LOYOLA UNIVERSITY CHICAGO
1 University Plaza 1 LMU Drive 1032 W Sheridan Road
New York, NY 11201 Los Angeles, CA 90045 Chicago, IL 60660

LOYOLA UNIVERSITY MARYLAND MANHATTAN COLLEGE MARIST COLLEGE


4501 North Charles Street 4513 Manhattan College Parkway 3399 N Road
Baltimore, MD 21210-2694 Riverdale, NY 10463 Poughkeepsie, NY 12601

MARQUETTE UNIVERSITY MERCER UNIVERSITY UNIVERSITY OF MIAMI


1250 W Wisconsin Avenue 1400 Coleman Avenue Coral Gables, FL 33124
Milwaukee, WI 53233 Macon, GA 31207

MOUNT ST. MARYS UNIVERSITY NIAGARA UNIVERSITY NORTHEASTERN UNIVERSITY


16300 Old Emmitsburg Road 5795 Lewiston Road 360 Huntington Avenue
Emmitsburg, MD 21727 Niagara University, NY 14109 Boston, MA 02115

NORTHWESTERN UNIVERSITY UNIVERSITY OF NOTRE DAME ORAL ROBERTS UNIVERSITY


633 Clark Street Notre Dame, IN 46556 7777 S Lewis Avenue
Evanston, IL 60208 Tulsa, OK 74171

2
Case 2:17-cv-04271-MMB Document 1-4 Filed 09/26/17 Page 4 of 5

UNIVERSITY OF THE PACIFIC PEPPERDINE UNIVERSITY UNIVERSITY OF PORTLAND


3601 Pacific Avenue 24255 Pacific Coast Highway 5000 N Willamette Boulevard
Stockton, CA 95211 Malibu, CA 90263 Portland, OR 97203

PRESBYTERIAN COLLEGE PROVIDENCE COLLEGE QUINNIPIAC UNIVERSITY


503 S Broad Street 1 Cunningham Square 275 Mt Carmel Avenue
Clinton, SC 29325 Providence, RI 02908 Hamden, CT 06518

RICE UNIVERSITY UNIVERSITY OF RICHMOND SACRED HEART UNIVERSITY


6100 Main Street 28 Westhampton Way 5151 Park Avenue
Houston, TX 77005 Richmond, VA 23173 Fairfield, CT 06825

SAMFORD UNIVERSITY UNIVERSITY OF SAN DIEGO UNIVERSITY OF SAN FRANCISCO


800 Lakeshore Drive 5998 Alcal Park 2130 Fulton Street
Birmingham, AL 35229 San Diego, CA 92110 San Francisco, CA 94117

SANTA CLARA UNIVERSITY SEATTLE UNIVERSITY SIENA COLLEGE


500 El Camino Real 901 12th Avenue 515 Loudon Road
Santa Clara, CA 95053 Seattle, WA 98122 Loudonville, NY 12211

UNIVERSITY OF SOUTHERN CALIFORNIA SOUTHERN METHODIST UNIVERSITY ST. BONAVENTURE UNIVERSITY


Los Angeles, CA 90089 6425 Boaz Lane 3261 W State Road
Dallas TX 75205 St Bonaventure, NY 14778

ST. FRANCIS COLLEGE BROOKLYN ST. JOHNS UNIVERSITY SAINT LOUIS UNIVERSITY
180 Remsen Street 8000 Utopia Parkway 221 N Grand Boulevard
Brooklyn, NY 11201 Queens, NY 11439 St Louis, MO 63103

ST. MARYS COLLEGE OF CALIFORNIA STANFORD UNIVERSITY STETSON UNIVERSITY


1928 St Marys Road 450 Serra Mall 421 N Woodland Boulevard
Moraga, CA 94556 Stanford, CA 94305 DeLand, FL 32723

SYRACUSE UNIVERSITY TEXAS CHRISTIAN UNIVERSITY TULANE UNIVERSITY


900 S Crouse Avenue 2800 S University Drive 6823 St Charles Avenue
Syracuse, NY 13210 Fort Worth, TX 76129 New Orleans, LA 70118

UNIVERSITY OF TULSA VALPARAISO UNIVERSITY VANDERBILT UNIVERSITY


800 S Tucker Drive 1700 Chapel Drive 2201 West End Avenue
Tulsa, OK 74104 Valparaiso, IN 46383 Nashville, TN 37235

3
Case 2:17-cv-04271-MMB Document 1-4 Filed 09/26/17 Page 5 of 5

WAGNER COLLEGE WAKE FOREST UNIVERSITY WOFFORD COLLEGE


1 Campus Road 1834 Wake Forest Road 429 N Church Street
Staten Island, NY 10301 Winston-Salem, NC 27106 Spartanburg, SC 29303

XAVIER UNIVERSITY UNIVERSITY OF NEW HAMPSHIRE UNIVERSITY OF RHODE ISLAND


3800 Victory Parkway 105 Main Street 45 Upper College Road
Cincinnati, OH 45207 Durham, NH 03824 Kingston, RI 02881

UNIVERSITY OF VERMONT
Burlington, VT 05405

4
Case 2:17-cv-04271-MMB Document 1-5 Filed 09/26/17 Page 1 of 4

Exhibit D
Case 2:17-cv-04271-MMB Document 1-5 Filed 09/26/17 Page 2 of 4

Sign BOTH copies, keep one copy and return OTHER copy to:

ABC University
Department of Athletics
1234 Skip-Along Lane
Nowheresville, Oz 11111

Athletic Financial Aid Agreement

LAST NAME FIRST SS# DATE OF


NAME BIRTH
ADDRESS CITY STATE ZIP

HOME SPORT PERIOD OF DATE


PHONE AWARD

INITIAL X RENEWAL REDUCTION INCREASE


AWARD

Director of Financial Aid (Date)

Head Coach (Date)

Athletic Director (Date)

Conditions of Athletic Financial Aid:

I understand that to qualify for this financial aid I must:


- Fulfill the admission requirements of Yellow Brick University; and
- Meet and maintain the eligibility requirements for athletic participation and financial aid
established by the NCAA, the Tornado Athletic Conference and Yellow Brick University.

My financial aid will cover the following:

INDICATOR AWARD INDICATOR AWARD

IN-STATE TUITION & FEES OUT OF STATE TUITION & FEES

ROOM BOARD
REQUIRED COURSE-RELATED BOOKS PERCENT OR FRACTION OF ABOVE
AMOUNT

NCAA regulations restrict the total amount of financial aid a student-athlete can receive. If I receive a federal
grant (i.e., Pell) or some other scholarship or financial aid (including earnings from a job during a term), I will
notif y the financial aid office and athletics department. These funds may replace a portion of my athletic s
grant to meet NCAA and Yellow Brick University regulations. I understand that approval of any scholarship
aid is subject to final review of my academic records.

Other Conditions: Student-athlete agrees to release grant awards towards cost of tuition, fees, room, board, and
books to the athletics scholarship account; athletics scholarship will pay for any costs not covered by grant awards.

1
Case 2:17-cv-04271-MMB Document 1-5 Filed 09/26/17 Page 3 of 4

My financial aid will not be increased, reduced or canceled during the period of its award on the basis of my
athletic ability, performance or contribution to my teams success, because of injury or illness that prevents
me from participating in athletics, or for any other athletic reason. However, should an injury or illness
prevent me from participating in athletics I will be expected to assist the athletics department in other
operational activities (i.e. coaching and/or support staff duties).

1. A student other than an entering freshman must be eligible to participate under University rules
and must comply with University rules as to probation and retention. Such an award shall be
granted for the indicated period and renewed at the discretion of Yellow Brick University.

2. Scholarship aid may be gradated or withdrawn during the period of its award if the recipient:

a. Renders himself/herself ineligible for intercollegiate competition.

b. Fraudulently misrepresents any information on his/her application for scholarship,


application for admission, historical report, or letter of intent.

c. Voluntarily withdraws from a sport for his/her own personal reasons.

d. Engages in serious misconduct warranting substantial disciplinary penalty. Violations of the


following constitute serious misconduct or manifest disobedience:

(1) University academic and citizenship rules and regulations.

(2) Rules and regulations of the Department of Intercollegiate Athletics and specific
rules of the recipients sport as defined by the head coach as they apply.

e. Fails to attend classes, squad or individual meetings, study hall, assemblies, tutoring of
study group sessions and participate in athletic practice sessions and scheduled contests, as
specified by the sport coach.

f. Does not comply with expected personal conduct, appearance and dress, both on and off the
University campus, and accepted uniform for athletic contests, when such violations bring
discredit to the athletic program.

g. Fails to adhere to training rules and regulations.

h. Engages in gambling activities on intercollegiate activities prohibited by NCAA legislation.

i. Engages in the use, possession, or traffic of an illegal drug substance, or refuses to take a
drug test when requested to do so by NCAA, campus, community or departmental authority.

3. This aid will also be reduced or canceled if the recipient:

a. Signs a professional sports contract for this sport.

b. Accepts money for playing in an athletic contest that causes him/her to exceed the cost of a full
grant.

c. Agrees to be represented by an agent and accepts money that causes him/her to exceed the
cost of a full grant.

d. Receives other aid that causes him/her to exceed his/her individual limit.

4. Termination of an athletics grant-in-aid during the period of its award can be made only with prior
notice to the recipient and an opportunity to appear before the awarding agency.

2
Case 2:17-cv-04271-MMB Document 1-5 Filed 09/26/17 Page 4 of 4

5. This award does not cover summer school expenses, nor is it a promise to fund summer school
academic work at Yellow Brick University.

6. My total financial aid and job-related earnings (except for earnings from a legitimate off-campus job
that I arranged for without the athletics department or representatives of Yellow Brick Universitys
department of athletics interests involvement) may not exceed the limits set by the NCAA and the
Tornado Athletic Conference.

I accept the financial aid under the conditions as listed in this document and certify that I have not received
financial aid or promises of financial aid in excess of that allowed under NCAA regulations. I agree to
cooperate fully with Yellow Brick University and the NCAA in any authorized investigations concerning my
financial aid arrangements.

Student-Athletes Name Student-Athletes Signature Date

Parents Signature Date


if student is a minor

3
Case 2:17-cv-04271-MMB Document 1-6 Filed 09/26/17 Page 1 of 2

Exhibit E
Case 2:17-cv-04271-MMB Document 1-6 Filed 09/26/17 Page 2 of 2

Financial Aid Information

Athletic scholarships are awarded by NCAA Divisions I and II institutions. Division III
institutions do not award financial aid based on athletics ability, but you may be eligible to
receive academic scholarships or need-based financial aid. It is important to understand several
points about athletics scholarships. (Note: The information below is a summary and does not
include all Divisions I and II financial aid rules. Contact your college or university to get more
detailed information about NCAA financial aid rules.)

x Athletics scholarships in Divisions I and II are given initially for up to one year. They
may be renewed annually for a maximum of five years within a six-year period of
continuous college attendance if you fulfill NCAA requirements. But please keep in mind
that your athletics aid can be cancelled or reduced at the end of one year.
x Athletics scholarships can be renewed, reduced, increased or canceled from year to year
for almost any reason. If your scholarship is going to be reduced or cancelled at any time,
your college or university must first provide you with an opportunity to appeal that
decision.
x Athletics scholarships are awarded in a variety of amounts, ranging from full scholarships
(including tuition, fees, room, board and books) to very small scholarships that, for
example, provide only required course-related books.
x You must report all scholarships you receive to your college financial aid office. The
total amount of financial aid a student-athlete can receive and the total amount of
athletics aid a team can award may be limited. These limits can affect whether a student-
athlete may accept additional financial aid from other sources. Ask financial aid officials
at the college or university about other financial aid you may be eligible to receive and
about the impact of that aid on athletics aid limits.

An athletic scholarship is a tremendous benefit to most families, but you should have a plan to
pay for those college costs not covered by a scholarship (i.e., travel between home and
school).You should also consider how you will finance your education if your athletics
scholarship is reduced or canceled.
Case 2:17-cv-04271-MMB Document 1-7 Filed 09/26/17 Page 1 of 7

Exhibit F
Case 2:17-cv-04271-MMB Document 1-7 Filed 09/26/17 Page 2 of 7

United States Government


National Labor Relations Board
OFFICE OF THE GENERAL COUNSEL
Advice Memorandum
DATE: September 22, 2016

TO: Peter Sung Ohr, Regional Director


Region 13

FROM: Barry J. Kearney, Associate General Counsel


Division of Advice

SUBJECT: Northwestern University


Case 13-CA-157467

The Region seeks advice as to whether certain rules in the Northwestern


Universitys Football Handbook were unlawfully overbroad in violation of Section
8(a)(1) of the Act and, if so, whether Northwestern University (the Employer) properly
repudiated them.

We conclude that the relevant Football Handbook rules were unlawful until they
were modified in response to the instant charge. 1 However, we further conclude that it
would not effectuate the policies and purposes of the NLRA to issue complaint in this
case because the Employer, although still maintaining that athletic scholarship football
players are not employees under the NLRA, modified the rules to bring them into
compliance with the NLRA and sent the scholarship football players a notice of the
corrections, which sets forth the rights of employees under the NLRA. The Region
should therefore dismiss the charge, absent withdrawal.

I. The Unlawful Football Handbook Rules

The pertinent provisions of the Employers handbook are outlined below. In each
instance, we found that the rule violated Section 8(a)(1), however, the Employers
revised language as noted below corrected the unlawful aspects of the rules.

1 We assume, for purposes of this memorandum, that Northwesterns scholarship


football players are statutory employees.
Case 2:17-cv-04271-MMB Document 1-7 Filed 09/26/17 Page 3 of 7

Case 13-CA-157467
-2-

A. Social Media Policy

The Employers Social Media policy provided, in relevant part: 2

[W]e are concerned about protecting the image and reputation of


Northwestern University and its Department of Athletics and Recreation. . . .

Publicly posted information on social networking websites can be seen


may be regularly monitored by any person with a smart phone or
internet access, including individuals a number of sources within
Northwestern University (e.g., Athletics Department, Student Affairs,
University Police). . . .

Northwestern student-athletes should be very careful when using online


social networking sites and keep in mind that sanctions may be imposed if
these sites are used improperly or depict inappropriate, embarrassing
harassing, unlawful or dangerous behaviors such as full or partial
nudity (of yourself or another), sex, racial or sexual epithets,
underage drinking, drugs, weapons or firearms, hazing, harassment,
unlawful activity or any content that violates Northwestern
University, Athletics Department or student-athlete codes of conduct
and/or state or federal laws.
.
Do not post any information, photos or other items online that contain full
or partial nudity (of yourself or another), sex, racial or sexual
epithets, underage drinking, drugs, weapons or firearms, hazing,
harassment or unlawful activity could embarrass you, your family, your
team, the Athletics Department or Northwestern University.
.
Examples of inappropriate or offensive behaviors posted on social networking
sites may include.Photos meant to harass, bully or demean the
individuals included in the photo by offensive reference to their race, sex,
disability, age, national origin, religion or any other status protected
by law or Northwestern University policy.

We conclude that certain provisions of the Social Media Policy would reasonably
be construed as prohibiting Section 7 activity. In response to the charge in this case,

2The stricken text of the rules cited hereinafter represents the Employers deletions
and the bold text represents the Employers additions to the rules.
Case 2:17-cv-04271-MMB Document 1-7 Filed 09/26/17 Page 4 of 7

Case 13-CA-157467
-3-
the Employer corrected this rule by eliminating the unlawful provisions, and thus the
corrected language is lawful as written. 3

B. Sports Medicine & Player Policy Communication Rule

The Sports Medicine & Player Policy Communication Rule provided, in relevant
part:

1. Confidential: Never discuss any aspects of the team, the physical condition
of any players, planned strategies, etc. with anyone. The team is a family
and what takes place on the field, in meetings or in the locker room stays
within this family.
Protecting Personal Health Information: Based on privacy
considerations associated with medical conditions and the need to
ensure that teams with whom we compete do not obtain medical
information about our student-athletes, you should not reveal the
medical conditions or injuries to persons outside the
Northwestern University football team and staff. This restriction
does not apply to information that is generally known and
available to the public, nor does it prohibit student athletes from
discussing general medical issues and concerns with third parties
provided that such discussions do not identify the physical or
medical condition or injury of specific or named student athletes.

2. Keep our information private.

The stricken original provisions of the Sports Medicine & Player Policy
Communication Rule would reasonably be construed to prohibit Section 7 activity,
including discussions about vital health and safety issues. The Employers modification
of the rule is lawful as written. The modified rule provides in part that the provision
does not prohibit football players from discussing general medical issues and concerns
with third parties provided that such discussions do not identify the physical or medical
condition or injury of specific or named student athletes. That modification struck the
proper balance of maintaining players confidentiality and protecting football team
information while at the same time allowing players to speak out on a no-names basis
about vital health and safety issues impacting themselves, their teammates, and fellow
collegiate football players.

3 Our conclusion is limited to the allegedly unlawful social media policy itself, not to the
codes of conduct referenced within the social media policy, which we did not examine.
Case 2:17-cv-04271-MMB Document 1-7 Filed 09/26/17 Page 5 of 7

Case 13-CA-157467
-4-

C. Student-Athlete Rights and Responsibilities (Dispute Resolution


Procedure)

The Dispute Resolution Procedure provided, in relevant part:

Within the intercollegiate athletic program, all decisions directly related to the
playing field are the province of the head coach, and all decisions are final. In the
event a student-athlete has a complaint or grievance concerning personal rights
and relationships to the athletic program, the following procedure may be used:

1. The student-athlete should discuss the issue with Cody Cejda. 4


2. If the issue is not resolved, the student-athlete and captain(s), if
applicable, meet with the head coach.
3. If the issue continues to be unresolved, the student-athlete meets with the
Senior Associate Athletic Director for Intercollegiate Services. At this
point, the student-athlete may bring another person to the meeting as an
observer. A written summary of the meeting will be prepared and
submitted to the Athletics Director and the student-athlete. The student-
athlete may also appeal directly to the Athletics Director.
4. The Faculty Committee on Athletics and Recreation (CAR) is the next and
usually final step. CARs decision may be appealed to the President of
Northwestern University, Morton O. Shapiro.

We conclude that this rule would reasonably be construed as prohibiting Section


7 activity by prohibiting discussions with fellow players and third parties concerning
workplace grievances.

The Employer eliminated this rule from the handbook.

D. Athletic Communications for Student Athletes Rule

The Athletic Communications for Student Athletes Rule provided, in relevant


part:

THINGS TO REMEMBER DURING AN INTERVIEW

4Cody Cejda is the Northwestern University Director of Football Operations. See


http://www.nusports.com/mobile/staff.aspx?staff=99 (last visited _____).
Case 2:17-cv-04271-MMB Document 1-7 Filed 09/26/17 Page 6 of 7

Case 13-CA-157467
-5-
**** PLEASE NOTE: As responsible student athletes, you may directly
speak with members of the media if you choose to do so. You should never
agree to an interview unless the interview has been arranged by the athletic
communications office. All media request for interviews with student athletes
must be made through athletic communications. If you are contacted directly by
the media (this includes The Daily Northwestern or any other student media
outlet), you have the option of referring the media representative you
should politely, but firmly, redirect the reporter to the athletic communications
office for a response or to personally speak with the media
representative. Please be aware that Wwe will never give out your cell
phone number to the media. This protects your privacy and as well as avoids
interruptions of your time. ****

In dealing with the media, you should be aware of and consider the
following:
.
Be positive when talking about your teammates, coaches and team. Share
credit for your success by talking about the contributions of Praise
your teammates and use their names. Remember that Eevery great
running back needs a good offensive line. Every high scorer needs teammates
who can pass the ball. Talking about the great work of others shows
you have confidence in your own role and the value of your own
contributions, so youre not afraid of letting someone else have their
moment of glory, too. Avoid the negatives, as they breed discontent and
trouble.

The Athletic Communication for Student Athletes Rule would reasonably be


construed as prohibiting Section 7 activity. The Employer modified the rule to clarify
that student athletes may choose to speak directly to the media and have the option of
referring the media representative to the athletic communications office or players
could choose to speak with that representative themselves. Accordingly, the current
rule is lawful as written.

II. The Employer Did Not Adequately Repudiate the Unlawful Rules;
However, We Conclude It Would Not Effectuate the Policies and
Purposes of the NLRA to Issue Complaint In This Case

Although the Employer has revised the Football Handbook in an attempt to


remedy the unlawful provisions, we conclude, and the Employer has conceded, that
these revisions alone do not adequately repudiate the unlawful handbook rules under
Case 2:17-cv-04271-MMB Document 1-7 Filed 09/26/17 Page 7 of 7

Case 13-CA-157467
-6-
the Boards Passavant standard. 5 Nevertheless, we have determined that it would not
effectuate the policies and purposes of the NLRA to issue complaint in this case.

Section 10142.4 of the Boards ULP Casehandling Manual provides that a


charged party may take remedial action in some cases without being willing to enter
into a written settlement agreement or to acknowledge by a posted notice that the
action is being taken pursuant to settlement of a charge. Specifically, pursuant to
Section 10142.4(b), [i]f the action taken is a full or substantial remedy in fact, if there
is no history of prior similar practices by the same charged party and if there is no
likelihood of recurrence, the charge may be dismissed on the ground that effectuation of
the purposes of the Act does not warrant further proceedings.

In accordance with Section 10142.4 of the Boards Casehandling Manual, we


conclude that it would not effectuate the policies and purposes of the NLRA to issue
complaint in this case. The Employer has modified the unlawful rules to bring them
into compliance with the NLRA and sent its football players a notice of the corrections,
which sets forth the rights of employees under the NLRA. In addition, the Employer
has no history of prior similar unfair labor practices and there is no reason to believe
the same unlawful rules would be re-implemented.

Accordingly, the Region should dismiss the charge, absent withdrawal. 6

/s/
B.J.K.

5 Passavant Memorial Area Hosp., 237 NLRB 138 (1978).

6 The charge in this case was also filed against the National Collegiate Athletic
Association (NCAA) as an alleged joint employer of Northwesterns scholarship
football players. Given our conclusion that it would not effectuate the policies and
purposes of the NLRA to issue complaint in this case, and to therefore dismiss the
charge against Northwestern, the charge should also be dismissed against the NCAA.
Case 2:17-cv-04271-MMB Document 1-8 Filed 09/26/17 Page 1 of 4

Exhibit G
ESPN.com - Free to tweet: Northwestern's restrictions on football players ruled unlawful Page 1 of 3
Case 2:17-cv-04271-MMB Document 1-8 Filed 09/26/17 Page 2 of 4

ESPN.com: OTL [Print without images]

Monday, October 10, 2016


Updated: October 11, 5:06 PM ET

Free to tweet: Northwestern's restrictions on football


players ruled unlawful
By Lester Munson
ESPN.com

In an unprecedented foray into college sports, the National Labor Relations Board general counsel has
declared that Northwestern University must eliminate "unlawful" rules governing football players and
allow them greater freedom to express themselves. The ruling, which referred to players as
employees, found that they must be freely allowed to post on social media, discuss issues of their
health and safety, and speak with the media.

The new rules could apply to the football programs at the 16 other private universities that play in the
FBS, including schools such as Notre Dame, Stanford and Baylor -- but not public universities. As the
nation's top labor agency, the NLRB governs relations between private employers and their
employees, so it has no power over public schools. Its findings on Northwestern became public on
Friday.

The ruling does not have force of law on the private schools, but if anyone raised a complaint, the
result would likely be similar to the Northwestern case. Coaches and administrators there are no
longer able to ban players from posting on social media -- as some high-profile programs have done --
or even regulate what they say. And whereas Northwestern once barred players from talking to any
media not approved by the school, it is no longer allowed to do so.

In addition to granting players greater freedoms, the NLRB ruling will offer athletes a clear path to
bring their issues before an independent agency outside of the organizations that have historically
governed college athletics -- the universities, the conferences and the NCAA.

So while this ruling did not address compensation for athletes, someone could now file a charge with
the NLRB asserting that failing to pay players constitutes an unfair labor practice. After all, if the
NLRB -- which is led by a five-person board and a general counsel, all appointed by the president --
declared that close monitoring of social media is an unfair labor practice, it is an open question how it
would view failure to pay players. Until now, the issue has been contested only in antitrust courts.

The action against Northwestern came in a highly unusual proceeding. It stemmed from a charge filed
in August 2015 against the school by David Rosenfeld, an activist labor lawyer with the firm of
Weinberg Roger & Rosenfeld in Alameda, California, and echoed the 2014 attempt by Northwestern
players to form a union. Rosenfeld alleged that Northwestern was guilty of "unfair labor practices" in
its treatment of football players.

Rosenfeld, who had no previous connection with Northwestern, relied on a provision of American
labor law that allows anyone, anywhere, to bring unfair treatment of employees to the attention of the
NLRB for remedial action. By the same token, if someone were to challenge the NCAA's
compensation rules, it would not need to be a player -- it could be anyone.

http://www.espn.com/espn/print?id=17765516&type=Columnist&imagesPrint=off 10/11/2016
ESPN.com - Free to tweet: Northwestern's restrictions on football players ruled unlawful Page 2 of 3
Case 2:17-cv-04271-MMB Document 1-8 Filed 09/26/17 Page 3 of 4

In response to Rosenfeld's charge, the NLRB issued an "advice memorandum" late last month that
described the Northwestern team rules as "unlawfully overbroad." The memorandum was made public
last week after ESPN.com filed a freedom of information request for the material.

The jumping off point for Rosenfeld's filing was a decision in 2014 by the NLRB Regional
Administrator in Chicago, Peter Ohr, that Northwestern players were employees. Northwestern
vigorously disputed the idea at the time and appealed Ohr's decision to the five members of the
NLRB.

During the course of the appeal, most of the private universities that would be affected joined
Northwestern's effort. They succeeded in obtaining a ruling from the NLRB board members that the
agency would not enter into the world of college sports. The board said it did not make sense for the
NLRB to take jurisdiction over a potential Northwestern players union since it was the only private
school in the Big Ten. It would be chaos, the board reasoned, if Northwestern was governed by the
NLRB and the other schools were governed by the laws of New Jersey, Pennsylvania, Ohio,
Michigan, Wisconsin, Indiana, Illinois, Iowa and Nebraska.

But even as the NLRB refused to take jurisdiction over the situation, Ohr's decision that the players
were employees remained untouched and in effect. In the memorandum made public last week, an
associate general counsel of the NLRB stated in a footnote that he "assume(d) that Northwestern's
scholarship football players are statutory employees."

Northwestern, in a written statement from vice president for university relations Alan K. Cubbage to
ESPN.com, stated that the school "disputes the General Counsel's assumption" that Northwestern's
athletes are employees and asserted that they "are students, first and foremost."

In his charge of unfair treatment of employees, Rosenfeld cited the Northwestern team handbook that
was a critical exhibit in the 2014 hearing. The handbook includes rules governing the daily lives of
the players and makes clear that they would be closely supervised by coaches.

"I obtained the handbook from the NLRB with a Freedom of Information Act request and located the
provisions that were unfair labor practices," Rosenfeld told ESPN.com.

The provisions cited by Rosenfeld and found to be "unlawful" included coaches' monitoring of
players' social media use and bans on discussion of "any aspects of the team ... with anyone,"
discussing individual grievances with fellow team members or "third parties," including lawyers and
union representatives, and all contacts with the media unless they were arranged by the "athletic
communications office."

During the course of the just concluded NLRB proceedings, Northwestern agreed to modify or to
eliminate the rules in question. The university's changes and its notice to team members of the new
policies resulted in the NLRB dismissing the charge without further hearings or actions. The initial
filings by Rosenfeld and Northwestern have not yet been made public.

Under the rule that the NLRB found to be "unlawful," Northwestern coaches and even the university
police could "regularly monitor" social media postings made by football players. Former team captain
and quarterback Kain Colter, the leader of the players union effort, testified in the NLRB hearing in
Chicago early in 2014 that when he posted a photo of himself in Oakley sunglasses that were a gift at
a celebrity golf outing, an assistant coach texted him within 10 minutes of the posting that he must

http://www.espn.com/espn/print?id=17765516&type=Columnist&imagesPrint=off 10/11/2016
ESPN.com - Free to tweet: Northwestern's restrictions on football players ruled unlawful Page 3 of 3
Case 2:17-cv-04271-MMB Document 1-8 Filed 09/26/17 Page 4 of 4

remove it. The coach was concerned that the selfie might be construed as an endorsement of Oakley
products.

Under the modification offered by Northwestern, the new social media rule provides that postings
"can be seen" by Northwestern personnel and cautions against posting "full or partial nudity (of
yourself or another) sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms,
hazing, harassment, or unlawful activity."

A previous handbook rule on "communications" told players that they must "never discuss any
aspects of the team with anyone." Emphasizing the confidentiality of players' physical conditions and
planned team strategies, the rule stated, "The team is a family and what takes place on the field, in
meetings, or in the locker room stays within this family."

The new rule is limited to a ban on discussion of individual medical conditions and allows players to
discuss "on a no-name basis" -- owing to HIPAA, they cannot refer to another player by name -- any
"vital health and safety issues impacting themselves, their teammates, and fellow collegiate football
players."

Rules governing Northwestern's student-athlete grievance process -- called the "Student-Athlete


Rights and Responsibilities (Dispute Resolution Procedure)" in the handbook -- were also deemed
unlawful and Northwestern has completely eliminated the procedures. The rules had stated that any
"grievance concerning personal rights and relationships" within the team must begin with an appeal to
the team's "director of football operations (Cody Cejda), further appeals to Head Coach Pat Fitzgerald
and the athletic director, and ultimately a review by Northwestern President Morton O. Schapiro."

The university's elimination of its procedures for player grievances was based on the NLRB's finding
that the rule "prohibited discussions with fellow players and third parties concerning workplace
grievances."

Another handbook rule told Northwestern players that they "should never agree to an interview (with
the media) unless the interview has been arranged by the athletic communications office," and that the
players must be "positive when talking about your teammates, coaches and team." Responding to the
NLRB's conclusions that the rule was an infringement on player freedoms, Northwestern abandoned
the rule, rewriting it to provide that players "may directly speak with members of the media if (they)
choose to do so."

In its revised handbook, the school suggested to players that, in interviews, they should "share credit
for your success by talking about the contributions of your teammates and use their names." Players
were also admonished to remember that "every great running back needs a good offensive line" and
"talking about the great work of others shows you have confidence in your own role and the value of
your own contributions, so you're not afraid of letting someone else have their moment of glory, too."

Editor's note: This story has been updated for clarity.

http://www.espn.com/espn/print?id=17765516&type=Columnist&imagesPrint=off 10/11/2016
Case 2:17-cv-04271-MMB Document 1-9 Filed 09/26/17 Page 1 of 10

Exhibit H
Case 2:17-cv-04271-MMB Document 1-9 Filed 09/26/17 Page 2 of 10

Caution
As of: September 22, 2017 8:13 PM Z

Vanskike v. Peters
United States Court of Appeals for the Seventh Circuit
May 18, 1992, Argued ; August 31, 1992, Decided
No. 89-3082

Reporter
974 F.2d 806 *; 1992 U.S. App. LEXIS 20473 **; 123 Lab. Cas. (CCH) P35,711; 30 Wage & Hour Cas. (BNA) 1739
Standards Act, 29 U.S.C.S. 201 et seq., and granted
DANIEL LEE VANSKIKE, Plaintiff-Appellant, v.
appellee's motion to dismiss the complaint. On appeal,
HOWARD A. PETERS, III, * Defendant-Appellee.
the court affirmed, holding that U.S. Const. amend. XIII
excludes convicted criminals from the prohibition of
Prior History: [**1] Appeal from the United States
involuntary servitude, so prisoners may be required to
District Court for the Southern District of Illinois, East St.
work. The court held further that there is no
Louis Division. No. 87 C 3829--William D. Stiehl, Chief
Constitutional right to compensation for such work;
Judge.
compensation for prison labor is by grace of the state.
Disposition: AFFIRMED. The court also held that appellant was not entitled to
class action status because appellant had no cause of
action, and a class representative must have a cause of
Core Terms action in his own right in order to bring a class action.
prison, unfair competition, minimum wage, employees,
cases, work assignment, incarceration, wages, Outcome
economic reality, district court, circumstances, The court affirmed the order of the district court that
purposes, courts, class action, assigned, alleges, granted appellee director of department of correction's
factors, unfair motion to dismiss the complaint in appellant prisoner's
action seeking minimum wages for work performed in
prison. The court held that appellant was not entitled to
Case Summary minimum wages for work performed in prison because
prisoners are excluded from the prohibition of
Procedural Posture involuntary servitude under the Thirteenth Amendment.
Appellant prisoner sought review of an order of the
United States District Court for the Southern District of LexisNexis Headnotes
Illinois that granted appellee director of department of
correction's motion to dismiss the complaint in
appellant's action seeking minimum wages for work
performed in prison. Civil Procedure > Appeals > Standards of
Review > De Novo Review
Overview
Civil Procedure > Parties > Pro Se
Appellant prisoner brought action against appellee Litigants > Pleading Standards
director of department of corrections seeking minimum
wages for work performed by appellant while HN1[ ] Standards of Review, De Novo Review
incarcerated in state prison. The district court treated
the complaint as a claim under The Fair Labor
The court reviews the grant of a motion to dismiss de
novo, assuming the truth of all factual allegations and
* Howard A. Peters, III has replaced Michael P. Lane as drawing reasonable inferences in favor of the plaintiff.
Director of the Illinois Department of Corrections and is
substituted pursuant to Fed. R. App. P. 43(c).
Case 2:17-cv-04271-MMB Document 1-9 Filed 09/26/17 Page 3 of 10 Page 2 of 9
974 F.2d 806, *806; 1992 U.S. App. LEXIS 20473, **1

Labor & Employment Law > Wage & Hour Fair Labor Standards Act, 29 U.S.C.S. 201 et seq.,
Laws > Scope & Definitions > Definition of Employ depends on the totality of circumstances rather than on
any technical label, courts must examine the "economic
Labor & Employment Law > Employment reality" of the working relationship.
Relationships > At Will Employment > Definition of
Employees
Criminal Law & Procedure > Postconviction
Labor & Employment Law > Wage & Hour
Proceedings > Imprisonment
Laws > Scope & Definitions > General Overview
HN5[ ] Postconviction Proceedings, Imprisonment
Labor & Employment Law > Wage & Hour
Laws > Scope & Definitions > Definition of
Employees
Under Illinois law, the Department Of Corrections (DOC)
Labor & Employment Law > Wage & Hour is authorized to assign work to prisoners, and to provide
Laws > Scope & Definitions > Governmental wages for the work. It is strictly forbidden, however, for
Employees the DOC to sell, contract or hire out a prisoner's labor
except as permitted under the work release provision of
HN2[ ] Scope & Definitions, Definition of Employ the statute. Ill. Rev. Stat. ch. 38, P 1003-12-2 (1991).
The relationship between the DOC and a prisoner is far
different from a traditional employer-employee
The Fair Labor Standards Act (FLSA), 29 U.S.C.S. relationship, because inmate labor belongs to the
201 et seq., which was enacted in 1938, requires institution.
employers to pay their employees a minimum hourly
wage. 29 U.S.C.S. 206(a)(1). The Act defines
"employee" in a circular fashion, as "any individual Civil Rights Law > Protection of Rights > Prisoner
employed by an employer," 29 U.S.C.S. 203(e)(1), Rights > General Overview
including "an individual employed by a State," 29
U.S.C.S. 203(e)(2)(C). The term "employer" includes Constitutional Law > Involuntary Servitude
"a public agency." 29 U.S.C.S. 203(d). The FLSA
defines the term "employ" as "to suffer or permit to Criminal Law & Procedure > Postconviction
work." 29 U.S.C.S. 203(g). Proceedings > Imprisonment

HN6[ ] Protection of Rights, Prisoner Rights


Governments > Legislation > Interpretation
U.S. Const. amend. XIII excludes convicted criminals
HN3[ ] Legislation, Interpretation
from the prohibition of involuntary servitude, so
prisoners may be required to work. Further, there is no
Constitutional right to compensation for such work;
Words have meaning in context, and it is rare that
compensation for prison labor is by grace of the state.
statutory terms may be responsibly applied without any
consideration whatsoever of the statutory context and
purposes.
Constitutional Law > Involuntary Servitude

Criminal Law & Procedure > Postconviction


Labor & Employment Law > Wage & Hour
Proceedings > Imprisonment
Laws > Scope & Definitions > General Overview
HN7[ ] Constitutional Law, Involuntary Servitude
HN4[ ] Wage & Hour Laws, Scope & Definitions

The control that the Department Of Corrections


Because status as an "employee" for purposes of the
exercises over a prisoner is nearly total, and control
Case 2:17-cv-04271-MMB Document 1-9 Filed 09/26/17 Page 4 of 10 Page 3 of 9
974 F.2d 806, *806; 1992 U.S. App. LEXIS 20473, **1

over his work is merely incidental to that general control. although they are governed by 29 U.S.C.S. 216(b)
Indeed, the U.S. Const. amend. XIII specific exclusion of rather than by Fed. R. Civ. P. 23. The difference is that
prisoner labor supports the idea that a prisoner under 216(b) the class member must opt in to be
performing required work for the prison is actually bound, while under Rule 23 the class member must opt
engaged in involuntary servitude, not employment. out in order not to be bound. Nevertheless, a class
Prisoners are essentially taken out of the national representative must have a cause of action in his own
economy upon incarceration. When they are assigned right in order to bring a class action.
work within the prison for purposes of training and
rehabilitation, they have not contracted with the Counsel: For DANIEL L. VANSKIKE, Plaintiff -
government to become its employees. Rather, they are Appellant: Jerold S. Solovy, 312/222-9350, C. John
working as part of their sentences of incarceration. Koch, 312/222-9350, Glenn E. Heilizer, 312/222-9350,
JENNER & BLOCK, 1 IBM Plaza, Chicago, IL 60611,
USA.
Constitutional Law > Involuntary Servitude For HOWARD A. PETERS, III, Defendant - Appellee:
Claudia E. Sainsot, DAG, 312/814-4683, OFFICE OF
HN8[ ] Constitutional Law, Involuntary Servitude THE ATTORNEY GENERAL, 100 W. Randolph Street,
State of Illinois Center, Chicago, IL 60601, USA. Randy
E. Blue, AAG, 217/782-1090, OFFICE OF THE
See U.S. Const. amend. XIII 1. ATTORNEY GENERAL, Criminal Appeals Division, 500
S. Second Street, Springfield, IL 62706, USA.

Judges: Before CUDAHY and MANION, Circuit Judges,


Torts > Business Torts > Unfair Business
and GIBSON, Senior Circuit Judge. **
Practices > General Overview
Opinion by: CUDAHY
HN9[ ] Business Torts, Unfair Business Practices

Opinion
Congress has addressed the problem of unfair
competition by regulating prison-made goods. The
Ashurst-Sumners Act, 18 U.S.C.S. 1761-62, [*806] CUDAHY, Circuit Judge. Daniel Vanskike, an
penalizes the knowing transportation of prison-made inmate at the Stateville Correctional Center in Joliet,
goods in commerce and was specifically intended to Illinois, has performed various work assignments while
combat unfair competition. in prison. In this appeal we must decide whether
Vanskike is entitled to the federal minimum wage for his
work by virtue [**2] of being an "employee" wider the
Fair Labor Standards Act.
Civil Procedure > Special Proceedings > Class
Actions > Certification of Classes I.

Labor & Employment Law > Wage & Hour Vanskike filed a pro se complaint against the Director of
Laws > Remedies > Class Actions the Illinois Department of Corrections (DOC), alleging
that the DOC used and continues to use prisoners for
Civil Procedure > ... > Notice of Class work assignments. The complaint alleges that Vanskike
Action > Content of Notice > Opt Out Provisions has done "forced labor" as a janitor, kitchen worker,
gallery worker and "knit shop piece-line worker" while
Civil Procedure > ... > Class Actions > Prerequisites incarcerated at Stateville and Menard Correctional
for Class Action > General Overview Centers. It charges that the DOC does not compensate
working prisoners with "equal minimum fairness
HN10[ ] Class Actions, Certification of Classes

** TheHonorable Floyd R. Gibson, Senior Circuit Judge of the


Class actions are expressly provided for under the Fair United States Court of Appeals for the Eighth Circuit, sitting by
Labor Standards Act, 29 U.S.C.S. 201 et seq., designation.
Case 2:17-cv-04271-MMB Document 1-9 Filed 09/26/17 Page 5 of 10 Page 4 of 9
974 F.2d 806, *806; 1992 U.S. App. LEXIS 20473, **2

employment compensation" ordinarily paid to "any state prisoner was entitled to a statutory witness fee as
normal employee . . . on an hour for hour wage." a "witness . . . in attendance" under 28 U.S.C. 1821.
In Demarest, however, there was no question that the
The district court construed the claim as one brought prisoner was literally a "witness" within the plain
under the Fair Labor Standards Act (FLSA), 29 U.S.C. language of the statute. Here it is simply not so clear.
201 et seq., and granted leave to proceed in forma The statute itself provides little assistance, and the term
pauperis. A magistrate judge denied the [*807] "employee" does not obviously include prisoners who
plaintiff's motion for appointment of counsel. The district perform work within a prison. 2 When it comes to such
court then granted the DOC's motion to dismiss appeals to "plain" or "clear" language, perhaps our best
pursuant to Fed. R. Civ. P. 12(b)(6), concluding that guide consists of our common linguistic intuitions, and
prisoners are not "employees" under the Fair Labor those intuitions are at least strained by the classification
Standards Act and that neither the DOC nor the State of of prisoners as "employees" of the DOC or of the State.
Illinois acts as an "employer" with respect to the Moreover, HN3[ ] words have meaning in context, and
prisoners. 1 it is rare that statutory terms may be responsibly applied
without any consideration whatsoever of the statutory
[**3] II. context and purposes. See First Chicago Corp. v.
Commissioner, 842 F.2d 180, 183 (7th Cir. 1988).
HN1[ ] We review the grant of a motion to dismiss de
novo, assuming the truth of all factual allegations and [**5] The Supreme Court has instructed the courts to
drawing reasonable inferences in favor of the plaintiff. construe the terms "employee" and "employer"
Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir. expansively under the FLSA. Nationwide Mutual Ins.
1991). Because the plaintiff in this case was proceeding Co. v. Darden, 117 L. Ed. 2d 581, 112 S. Ct. 1344, 1350
pro se in the district court, his complaint must be (1992); Rutherford Food Corp. v. McComb, 331 U.S.
liberally construed to ensure that his claims receive fair 722, 730, 91 L. Ed. 1772, 67 S. Ct. 1473 (1947).
and meaningful consideration. Haines v. Kerner, 404 Nevertheless, courts have generally declined to extend
U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 the FLSA's minimum wage provision to prisoners who
(1972); Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir. work in prison. See Miller v. Dukakis, 961 F.2d 7, 8 (1st
1984). Cir. 1992); Gilbreath v. Cutter Biological, Inc., 931 F.2d
1320, 1328 (9th Cir. 1991); Alexander v. Sara, Inc., 721
A. F.2d 149, 150 (5th Cir. 1983); Wentworth v. Solem, 548
F.2d 773, 775 (8th Cir. 1977); Emory v. United States, 2
HN2[ ] The FLSA, which was enacted in 1938, Cl. Ct. 579, 580 [*808] (1983), aff'd, 727 F.2d 1119
requires employers to pay their employees a minimum (Fed. Cir. 1983); Worsley v. Lash, 421 F. Supp. 556,
hourly wage--currently $ 4.25. 29 U.S.C. 206(a)(1) 556 (N.D. Ind. 1976); Sims v. Parke Davis & Co., 334 F.
(1992 Supp.). The Act defines "employee" in a circular Supp. 774, 787 (E.D. Mich. 1971), aff'd, 453 F.2d 1259
fashion, as "any individual employed by an employer," (6th Cir. 1971), cert. denied, 405 U.S. 978, 31 L. Ed. 2d
29 U.S.C. 203(e)(1), including "an individual employed 254, 92 S. Ct. 1196 (1972); Hudgins v. Hart, 323 F.
by a State," 29 U.S.C. 203(e)(2)(C). The term Supp. 898, 899 (E.D. La. 1971); Huntley v. Gunn
"employer" includes "a public agency." 29 U.S.C. Furniture Co., 79 F. Supp. 110, 116 (W.D. Mich.
203(d). The FLSA defines the term "employ" as "to 1948). [**6]
suffer or permit to work." 29 U.S.C. 203(g).

Vanskike argues initially that the FLSA's "clear and 2 Vanskike also points out that the FLSA lists specific
unambiguous" language places working prisoners
exceptions to its coverage of "employees" but does not list
squarely within the scope [**4] of the minimum wage prisoners as an exception. This framework does suggest that
requirement. Vanskike relies on Demarest v. all individuals within the general category of "employees," if
Manspeaker, 498 U.S. 184, 111 S. Ct. 599, 112 L. Ed. not specifically excluded, come within the statute's scope. See
2d 608 (1991), in which the Supreme Court held that a Powell v. United States Cartridge Co., 339 U.S. 497, 516-17,
94 L. Ed. 1017, 70 S. Ct. 755 (1950); Patel v. Quality Inn
South, 846 F.2d 700, 702 (11th Cir. 1988), cert. denied, 489
1 The district court construed the complaint's references to U.S. 1011, 103 L. Ed. 2d 182, 109 S. Ct. 1120 (1989). The
"forced labor" as a claim under 42 U.S.C. 1983 for violation argument does not take us anywhere, however, because it
of the Thirteenth Amendment and dismissed that claim as assumes that prisoners plainly come within the meaning of the
well. Vanskike does not pursue that issue on appeal. term "employees."
Case 2:17-cv-04271-MMB Document 1-9 Filed 09/26/17 Page 6 of 10 Page 5 of 9
974 F.2d 806, *808; 1992 U.S. App. LEXIS 20473, **6

HN4[ ] Because status as an "employee" for purposes Department of Corrections, and that his labor was
of the FLSA depends on the totality of circumstances "forced." We do not think that this is a borderline case
rather than on any technical label, courts must examine like Carter or Watson. The courts have not extended the
the "economic reality" of the working relationship. FLSA's definition of "employee" to cover prisoners who
Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. are assigned to work within the prison walls for the
28, 33, 6 L. Ed. 2d 100, 81 S. Ct. 933 (1961); Rutherford prison. Indeed, cases like Carter and Watson appear to
Food Corp., 331 U.S. at 730; Secretary of Labor v. have proceeded under the assumption that the FLSA
Lauritzen, 835 F.2d 1529, 1535 (7th Cir. 1987), cert. would not apply in such circumstances. 3 The Ninth
denied, 488 U.S. 898, 109 S. Ct. 243, 102 L. Ed. 2d 232 Circuit's recent decision in Hale presents a situation
(1988). Vanskike places heavy reliance on three recent different from Carter and Watson: the prisoners in Hale
cases in which courts applied the "economic reality" worked within the prison walls and for a state agency.
standard to prisoners and found that they could qualify That case does not persuade us, however, that
as "employees" under the FLSA. In Carter v. Dutchess Vanskike should be considered an "employee" of the
Community College, 735 F.2d 8 (2d Cir. 1984), the [*809] DOC. First, the case appears to be
plaintiff was a prisoner who worked as a teaching distinguishable, since the prisoners in Hale were
assistant at (and was paid by) a local community actually employed by entities that were [**9] deemed
college. The court held that prisoners were not "private enterprises" under state law. Second, the
categorically excluded from the FLSA minimum wage decision is in tension with the Ninth Circuit's earlier
provision and remanded the case for an inquiry into the Gilbreath decision, in which a different panel of that
circumstances of employment. Id. at 15. In Watson v. court held that the FLSA does not apply to prisoners
Graves, 909 F.2d 1549 (5th Cir. 1990), the court held working within the prison for a private plasma center (a
that the plaintiffs, who worked for a construction [**7] situation that would seem to present a stronger case for
company outside the prison under a work release application of the FLSA). 931 F.2d at 1326; id. at 1330-
program, were "employees" of the company and were 31 (Rymer, J., concurring); see also Hale, 967 F.2d
entitled to the federal minimum wage. Id. at 1554-56. 1356, 1992 U.S. App. LEXIS 14295, 1992 WL 139326,
And in Hale v. Arizona, 967 F.2d 1356, 1992 U.S. App. *13 (Fletcher, J., dissenting). Finally, to the extent that
LEXIS 14295, 1992 WL 139326 (9th Cir. 1992), the Hale may rule that a prisoner working within the prison
court applied the FLSA to prisoners who worked for a and for the prison is an "employee" of the prison under
state entity making products in prison for sale or use the FLSA, we respectfully disagree with its conclusion.
outside the prison. Each of these three cases, in
examining the "economic reality" of the putative [**10] HN5[ ]
employment relationship, considered four factors set
forth in Bonnette v. California Health & Welfare Agency, Under Illinois law, the DOC is authorized to assign work
704 F.2d 1465, 1470 (9th Cir. 1983): "whether the to prisoners, and to provide wages for the work. The
alleged employer (1) had the power to hire and fire the legislature's purpose in authorizing prisoner work
employees, (2) supervised and controlled employee assignments is to "equip such persons with marketable
work schedules or conditions of employment, (3) skills, promote habits of work and responsibility and
determined the rate and method of payment, and (4) contribute to the expense of the employment program
maintained employment records." and the committed person's cost of incarceration." Ill.
Rev. Stat. ch. 38, P 1003-12-1 (1991). It is strictly
We do not question the conclusions of Carter, Watson forbidden, however, for the DOC to sell, contract or hire
and Hale that prisoners are not categorically excluded out a prisoner's labor except as permitted under the
from the FLSA's coverage simply because they are
prisoners. We must nevertheless reject Vanskike's
3 Thus the court in Carter carefully limited its holding to
contention that he is an "employee" for purposes of the
FLSA. We also decline to apply Bonnette's [**8] four- prisoners working for "outside employers," and distinguished
factor standard in this situation. Carter and Watson cases involving work within the prison and where "sole control
was with prison officials." 735 F.2d at 14, 15. Similarly, the
involved situations quite different from the one here. In
court in Watson. distinguished two classes of FLSA prisoner
both cases the prisoners performed work for private,
claims--work for outside employers performed within the
outside employers. In addition, they were given the
prison, and work for outside employers performed outside the
choice to work rather than being assigned to do so. prison--apparently assuming that work performed for the
Here, in contrast, there is no suggestion of an outside prison itself would clearly not be within the reach of the FLSA.
employer. Vanskike alleges only that he worked for the 909 F.2d at 1553.
Case 2:17-cv-04271-MMB Document 1-9 Filed 09/26/17 Page 7 of 10 Page 6 of 9
974 F.2d 806, *809; 1992 U.S. App. LEXIS 20473, **10

work release provision of the statute. Ill. Rev. Stat. ch. servitude, not employment. 4 The same basic [*810]
38, P 1003-12-2 (1991). There is no indication that the point can be made in a slightly different way. Bonnette's
DOC has a pecuniary, in contrast to a rehabilitative or emphasis on control harkens back to the common law
penological, interest in inmate labor. See Gilbreath, 931 distinction between an employer and an independent
F.2d at 1330 (Rymer, J., concurring). Moreover, the contractor; indeed, the cases cited for Bonnette's four-
relationship between the DOC and a prisoner is far factor standard involve precisely that [**13] distinction.
different from a traditional employer-employee See Bonnette, 704 F.2d at 1470 (citing Real v. Driscoll
relationship, because (certainly in these circumstances) Strawberry Assoc., 603 F.2d 748, 756 (9th Cir. 1979);
inmate labor belongs to the institution. Id. at 1331. HN6[ Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d
] The Thirteenth Amendment excludes convicted 235, 237-38 (5th Cir.), cert. denied, 414 U.S. 819, 94 S.
criminals from the prohibition of involuntary servitude, so Ct. 43, 38 L. Ed. 2d 51 (1973)). In those cases the
prisoners may be required to work. [**11] Draper v. question is essentially whether there is enough control
Rhay, 315 F.2d 193, 197 (9th Cir.), cert. denied, 375 over the individual to classify him as an employee. But
U.S. 915, 11 L. Ed. 2d 153, 84 S. Ct. 214 (1963). here we are coming at the definition of "employee" from
Further, there is no Constitutional right to compensation the opposite direction: there is obviously enough control
for such work; compensation for prison labor is "by over the prisoner; the problematic point is that there is
grace of the state." Sigler v. Lowrie, 404 F.2d 659, 661 too much control to classify the relationship as one of
(8th Cir. 1968), cert. denied, 395 U.S. 940, 23 L. Ed. 2d employment. The Bonnette factors thus primarily shed
456, 89 S. Ct. 2010 (1969). That there is no light on just one boundary of the definition of
Constitutional right does not, however, foreclose the "employee," and we are concerned with a different
possibility of a statutory right to compensation. boundary. Prisoners are essentially taken out of the
national economy upon incarceration. When they are
What is the "economic reality" of the relationship assigned work within the prison for purposes of training
between the DOC and Vanskike? As noted earlier, and rehabilitation, they have not contracted with the
several other courts have applied the four-factor government to become its employees. Rather, they are
Bonnette standard in determining the status of prisoners working as part of their sentences of incarceration. See,
who work. We think, however, that that standard is not e.g., Harris v. Yeager, 291 F. Supp. 1015, 1017 (D.N.J.
the most helpful guide in the situation presented here. 1968) [**14] (payments for prison work assignments
The Bonnette factors, with their emphasis on control "are not wages in a realistic economic employer-
over the terms and structure of the employment employee relationship"), aff'd, 410 F.2d 1376 (3d Cir.
relationship, are particularly appropriate where (as in 1969). Because Vanskike's allegations reveal that he
Bonnette itself) it is clear that some entity is an worked in the prison and for the DOC pursuant to
"employer" and the question is which one. The dispute penological work assignments, the economic reality is
in this case is a more fundamental one: Can this that he was not an "employee" under the FLSA. 5
prisoner plausibly be said to be "employed" in the
relevant sense at all? Consider a [**12] literal
application of the Bonnette factors in the present
4 HN8[ ] Section 1 of the Thirteenth Amendment provides in
context. The DOC might be said to have "had the power
full: "Neither slavery nor involuntary servitude, except as a
to hire and fire" Vanskike; it surely "supervised and
punishment for crime whereof the party shall have been duly
controlled" his schedule and work conditions,
convicted, shall exist within the United States, or any place
determined his pay and (presumably) kept work records. subject to their jurisdiction."
But the Bonnette factors fail to capture the true nature of
the relationship for essentially they presuppose a free 5 The Ninth Circuit's decision in Baker v. McNeil Island
labor situation. Put simply, the DOC's "control" over Corrections Ctr., 859 F.2d 124 (9th Cir. 1988), is
Vanskike does not stem from any remunerative distinguishable. In Baker, a prisoner had applied for a
relationship or bargained-for exchange of labor for voluntary position as an aide in the prison library and was
consideration, but from incarceration itself. HN7[ ] The rejected, allegedly on the basis of his race. The court reversed
control that the DOC exercises over a prisoner is nearly the dismissal of his claim under Title VII of the Civil Rights Act
total, and control over his work is merely incidental to of 1964, focusing on the economic reality of the relationship
and concluding that he could be an "employee" of the prison
that general control. Indeed, the Thirteenth
under Title VII. One reason Baker is different from the case at
Amendment's specific exclusion of prisoner labor
hand is that it involved a voluntary position rather than a
supports the idea that a prisoner performing required
mandatory work assignment. Perhaps more important,
work for the prison is actually engaged in involuntary however, are the differences in purpose between Title VII and
Case 2:17-cv-04271-MMB Document 1-9 Filed 09/26/17 Page 8 of 10 Page 7 of 9
974 F.2d 806, *810; 1992 U.S. App. LEXIS 20473, **14

[**15] The purposes underlying the FLSA bolster our The second purpose of the Act--preventing unfair
conclusion. "The central aim of the Act was to achieve, competition--presents a closer and more difficult
in those industries within its scope, certain minimum question. Cheap labor can give an unfair advantage to
labor standards." Mitchell v. Robert DeMario Jewelry, an enterprise that competes in the marketplace.
Inc., 361 U.S. 288, 292, 4 L. Ed. 2d 323, 80 S. Ct. 332 Vanskike argues that low- or no-wage prison labor
(1960). Congress sought to correct labor conditions that surely raises the specter of such unfair competition. The
are "detrimental to the minimum standard of living Ninth Circuit's recent decision in Hale relied heavily on
necessary for health, efficiency, and general well-being this second purpose of the FLSA to find working
of workers." 29 U.S.C. 202(a). In addition, the FLSA prisoners [**17] covered by the Act. The court noted
was intended to prevent unfair competition in commerce that the prisoners produced goods that were ultimately
from the use of underpaid labor. 29 U.S.C. 202(a)(3). sold in the private sector as well as goods that were
used by state and local governments (such as license
The first purpose of the FLSA has little or no application plates). The use of cheap prison labor to make such
in the context presented here. Prisoners' basic needs products, the court concluded, poses a risk of unfair
are met in prison, irrespective of their ability to pay. competition.
Requiring the payment of minimum wage for a
prisoner's work in prison would not further the policy of In the case before us, it is not at all clear whether
ensuring a "minimum standard of living," because a Vanskike works to produce goods that are distributed
prisoner's minimum standard of living is established by outside the prison. Assuming, for example, that he
state policy; it is not substantially affected by wages works to manufacture license plates, then the state (as
received by the prisoner. It is true, as Vanskike points producer) has an advantage over other potential
out, that some cases have characterized the FLSA's producers of license plates in the economy, because it
primary purpose more specifically, as aimed at is able to produce that item at low cost. But this version
"substandard wages and oppressive [**16] working of the unfair competition rationale is not limited to the
hours." Barrentine v. Arkansas-Best Freight Sys., Inc., production of goods. It would also seem to extend to
450 U.S. 728, 739, [*811] 67 L. Ed. 2d 641, 101 S. Ct. simple service work, such as that suggested by
1437 (1981). The evil of substandard wages, however, Vanskike's "janitor" and "kitchen worker" assignments.
as just noted, does not apply where worker welfare is For every prisoner who is assigned to sweep a floor or
not a function of wages. As for oppressive working wash dishes for little or no pay, there is presumably
hours, Vanskike alleges only that he was underpaid, not someone in the outside world who could be hired to do
that he was overworked, so only the minimum wage the job--someone who would have to be paid at least $
provision of 29 U.S.C. 206, and not the separate 4.25 an hour. This approach to the FLSA's second
working-hours provision of 207, is directly at issue purpose thus cuts a broad [**18] swath: carried to its
here. A prisoner may, of course, challenge his logical conclusion, prisoners must be paid minimum
conditions of incarceration under applicable statutory wage for anything they do in prison that can be
and Constitutional provisions such as the Eighth considered "work."
Amendment. But the fundamental goal of ensuring
We do not believe that Congress intended the FLSA to
workers' welfare and standard of living does not call for
dictate such a result, even given its goal of preventing
the application of the minimum wage in these
unfair competition. As noted earlier, the State of Illinois
circumstances.
strictly regulates the use of prison labor. More important,
HN9[ ] Congress has addressed the problem of unfair
the FLSA. It is true that cases interpreting Title VII are often
competition by regulating prison-made goods. The
helpful and persuasive in construing the FLSA, and vice versa.
See, e.g., Hyland v. New Haven Radiology Assoc., 794 F.2d Ashurst-Sumners Act, 18 U.S.C. 1761-62, penalizes
793, 796 (2d Cir. 1986). But we think that this case highlights the knowing transportation of prison-made goods in
an area in which the FLSA does not track Title VII. Prison is in commerce and was specifically intended to combat
many ways a society separate from the outside world. unfair competition. Kentucky Whip & Collar Co. v. Illinois
Discrimination, however, maintains the same invidious Central R.R. Co., 299 U.S. 334, 351, 81 L. Ed. 270, 57
character within the world of the prison and outside it. Given S. Ct. 277 (1937). The Ashurst-Sumners Act
the broad policies behind Title VII, there would appear to be undermines Vanskike's argument in two ways. First, it is
no reason to withhold Title VII's protections from extending noteworthy that the Act exempts commodities
inside the prison walls. The policies underlying the FLSA, in manufactured for use by federal, state and local
contrast, are tied to the national economy, and those policies
governments. Thus, Congress has already struck the
have limited application in the separate world of the prison.
Case 2:17-cv-04271-MMB Document 1-9 Filed 09/26/17 Page 9 of 10 Page 8 of 9
974 F.2d 806, *811; 1992 U.S. App. LEXIS 20473, **18

balance by precluding a wide range of inmate-labor while it is true that the Ashurst-Sumners Act does not
competition while permitting governments to use the directly regulate inmate labor, the Act clearly
fruits of such labor. That Congress drew the line where presupposes that the labor of prisoners performed for
it did suggests that it considered a certain range of the prison belongs to the institution; that is why the fruits
prison labor for the benefit [**19] of government outside of prison labor are assumed to be low-cost goods.
the boundaries of the targeted evil. The second purpose
of the FLSA coincides with the single purpose of the In sum, it cannot be denied, as the Ninth Circuit found in
Ashurst-Sumners Act--preventing unfair competition-- Hale, that the unfair competition rationale, broadly
and the latter statute, by its exception for goods used by conceived, triggers some concerns in the context of
government, belies the notion that any and all uses of prison labor. Nevertheless, we conclude that this
prison labor by the government unduly obstruct fair second purpose of the FLSA does not call for
competition. Moreover, the balance struck by Congress application of the minimum wage provision in these
makes sense. For the government, competition in the circumstances, for several reasons. First, we emphasize
marketplace is not a dominant mode and profits are not that Vanskike was not in a true economic employer-
the ultimate goal. A governmental advantage from the employee relationship with the DOC, so the statutory
use of prisoner labor is not the same as a similar low- language does not cover him. Second, as the court in
wage advantage on the part of a private entity: while the Hale appears to concede, the first purpose of the FLSA
latter [*812] amounts to an unfair windfall, the former is basically not implicated here. And third, Congress's
may be seen as simply paying the costs of public approach to prison labor in the Ashurst-Sumners Act
goods--including the costs of incarceration (as the suggests that the FLSA was not designed to encompass
Illinois statute expressly provides). the present scenario, even given its general aim of
preventing unfair competition. 6
Second, the Ashurst-Sumners Act supports the
conclusion that Congress did not intend to extend the [**22] B.
FLSA's definition of "employee" to prisoners working in
prison. The Ashurst-Sumners Act was enacted in 1935-- Vanskike challenges the district court's ruling that he
just three years before the enactment of the FLSA. It is could not bring his claim as a class action. The court
difficult to imagine that Congress would have enacted rejected Vanskike's request for class certification, noting
legislation in [**20] 1938 that rendered its recently that the FLSA "expressly disallows class actions." It is
passed prison-goods law essentially superfluous (for the not clear, however, that the district judge intended such
FLSA, so construed, would have addressed the problem a sweeping declaration, for he proceeded to state that
of unfair competition from cheaply made prison goods "only prisoners who have filed written consents" are
by eliminating the low-labor-cost advantage). Even if bound by such actions under the Act. In any event,
one could plausibly accept this scenario, it is harder to HN10[ ] class actions are expressly provided for under
hypothesize why, assuming the FLSA was intended to the FLSA, although they are governed by 29 U.S.C.
cover prisoners, Congress continued to make several 216(b) rather than by Federal Rule of Civil Procedure
minor amendments to and to recodify the Ashurst- 23. The difference is that under 216(b) the class
Sumners Act over the years. Given Congress's specific member must opt in to be bound, while under Rule
treatment of unfair competition in the prison labor [*813] 23 the class member must opt out in order not
context, we find it difficult to conclude that the federal
minimum wage was intended to address unfair
competition arising from prison labor performed for the 6 We note that, as Vanskike's counsel conceded at oral
prison. argument, if we were to hold that Vanskike is an "employee" of
the DOC for purposes of the FLSA, the cost of his board and
Vanskike points out that the Ashurst-Sumners Act lodging would presumably have to be deducted as wages. 29
applies only to goods, not services. This distinction U.S.C. 203(m) provides that "'wage' paid to any employee
might carry some weight if there were a suggestion in includes the reasonable cost . . . to the employer of furnishing
the present case of a private, outside employer using such employee with board, lodging, or other facilities, if such
the labor of prisoners. It is in such cases, like Watson board, lodging, or other facilities are customarily furnished by
and Carter, that the services of prisoners might be used such employer to his employees." Of course we need not
to confer a prohibited unfair advantage on a competing address here the potentially difficult question of the
business. We do not think, however, that the DOC's use "reasonable cost" of a prisoner's board and lodging--and
whether such cost might itself equal or exceed income
of prison labor presents such a [**21] case. Moreover,
attributable to the minimum wage.
Case 2:17-cv-04271-MMB Document 1-9 Filed 09/26/17 Page 10 of 10Page 9 of 9
974 F.2d 806, *813; 1992 U.S. App. LEXIS 20473, **22

to be bound. Woods v. New York Life Ins. Co., 686


F.2d 578, 580 (7th Cir. 1982).

Nevertheless, a class representative must have a cause


of action in his own right in order to bring a class action.
See, e.g., Tidwell v. Schweiker, 677 F.2d 560, 566 (7th
Cir. 1982), cert. denied, 461 U.S. 905, 103 S. Ct. 1874,
76 L. Ed. 2d 806 (1983). Because we have concluded
that Vanskike has failed to state a claim, we also
conclude that he is not [**23] entitled to pursue a class
action on the present claim.
C.

Finally, Vanskike argues that the district court abused its


discretion in denying his motion for appointment of
counsel. Although counsel might have been a big help
here, we conclude reluctantly that there was no abuse
of discretion in the district court's application of the five-
factor standard for the appointment of counsel for an
indigent. See Merritt v. Faulkner, 697 F.2d 761, 764 (7th
Cir.), cert. denied, 464 U.S. 986, 78 L. Ed. 2d 366, 104
S. Ct. 434 (1983); Maclin v. Freake, 650 F.2d 885, 887-
89 (7th Cir. 1981). 7 We have determined that
Vanskike's complaint fails, as a matter of law, to state a
valid claim upon which relief may be granted. In
addition, we note that Vanskike's appointed counsel on
appeal have served him vigorously and effectively, and
we are confident that Vanskike's present claim has
received a full and fair hearing.

[**24] III.

For the foregoing reasons, the judgment of the district


court is AFFIRMED.

End of Document

7 To this five-factor standard we have recently added a


threshold inquiry into whether the indigent made reasonable
efforts to obtain counsel or was effectively precluded from
making such efforts. Jackson v. County of McLean, 953 F.2d
1070, 1072-73 (7th Cir. 1992). This added factor does not
apply retroactively, however, and is therefore irrelevant here.
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 1 of 23

Exhibit I
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 2 of 23

Questioned
As of: September 22, 2017 8:14 PM Z

Hale v. Arizona
United States Court of Appeals for the Ninth Circuit
November 12, 1992, Argued En Banc and Submitted, San Francisco, California ; May 4, 1993, Filed
No. 88-15785, No. 89-15162

Reporter
993 F.2d 1387 *; 1993 U.S. App. LEXIS 10163 **; 125 Lab. Cas. (CCH) P35,819; 93 Cal. Daily Op. Service 3235

FELTON HALE and RICHARD S. BERRY, Plaintiffs-


Appellants, v. STATE OF ARIZONA; ARCOR Core Terms
ENTERPRISES, a subdivision of the state; JAMES
prison, inmates, minimum wage, employees, commerce,
RICKETTS, former director of the Arizona Department
unfair competition, wages, programs, industries,
of Corrections (DOC); SAMUEL LEWIS, director of the
exemption, labor standards, hard labor, interstate
DOC; MARILN WILKENS, director of Arizona
commerce, structured, substandard, entity, labor
Correctional Industries; THOMAS LESCAULT, director
conditions, district court, Amendments, convict,
of ARCOR; TONY WEST, DAVID TIERNEY, EARL
economic reality, prison-structured, argues, cheap,
COBB, THOMAS DONNELLY, HENRY EVANS,
employment relationships, mutually exclusive, summary
MARCUS ENGLEMEN, DELBERT HOUSEHOLDER,
judgment, prison-made, belonged, immunity
and RAY SHAFFER, members of the Board of
Directors, ARCOR Enterprises, Defendants-Appellees.
John Leroy Fuller, et al., Plaintiffs-Appellants, v. STATE Case Summary
OF ARIZONA; ARCOR ENTERPRISES, a subdivision
of the state; JAMES RICKETTS, former director of the Procedural Posture
Arizona Department of Corrections (DOC); SAMUEL
LEWIS, director of the DOC; MARILN WILKENS, Plaintiff inmates appealed an order of the United States
director of Arizona Correctional Industries; THOMAS District Court for the District of Arizona, which granted
LESCAULT, director of ARCOR; TONY WEST, DAVID summary judgment in favor of defendants, the State of
TIERNEY, EARL COBB, THOMAS DONNELLY, Arizona, prison management corporation, and officials.
HENRY EVANS, MARCUS ENGLEMEN, DELBERT The inmates filed their lawsuit against defendants
HOUSEHOLDER, and RAY SHAFFER, members of the pursuant to the Fair Labor Standards Act, 29 U.S.C.S.
Board of Directors, ARCOR Enterprises; RICHARD 201 et seq., 42 U.S.C.S. 1983, and Arizona law,
ORBERG, ARCOR Vice President of Operations; seeking to be paid the minimum wage for their prison
KENNETH VAN DE VEER, ARCOR Vice President of labor.
Business and Finance; JOHN F. WRIGHT, former
interim CEO, ARCOR; JAMES KINSELLA, former Overview
ARCOR Vice President of Business and Finance;
GILBERT EVANS, former ARCOR director of Plaintiff inmates worked for state prison industries
operations; RALPH CLUFF, ARCOR operations and programs and sought to be paid the federal minimum
control officer; MICHAEL ULLERY, former interim wage on the ground that they were employees of the
ARCOR operations and control officer, Defendants- prison under the Fair Labor Standards Act (FLSA), 29
Appellees. U.S.C.S. 201 et seq. They filed complaints against
defendants, state of Arizona, prison management
Prior History: [**1] Appeal from the United States corporation, and officials for damages and injunctive
District Court for the District of Arizona. D.C. No. CV-85- relief under the FLSA, 42 U.S.C.S. 1983, and Arizona
1205-WPC. William P. Copple, District Judge, Presiding. law. The district court granted summary judgment with
D.C. No. CV-86-2034-RCB. Robert C. Broomfield, regard to one plaintiff in favor of all defendants because
District Judge, Presiding. it found no employer-employee relationship under the
FLSA and no jurisdiction over state claims or
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 3 of 23
Page 2 of 22
993 F.2d 1387, *1387; 1993 U.S. App. LEXIS 10163, **1

retrospective federal claims because of U.S. Const. Labor & Employment Law > Wage & Hour
amend. XI. The court affirmed finding that the Eleventh Laws > Scope & Definitions > Governmental
Amendment did not bar plaintiffs' FLSA claim, that there Employees
was no employer-employee relationship between the
prisoners and the state under the FLSA, and that Labor & Employment Law > Wage & Hour
defendants were not persons within meaning of 1983. Laws > Remedies > General Overview
The court concluded that because plaintiffs worked for
programs structured by the prison pursuant to the HN1[ ] State Sovereign Immunity, State Immunity
state's requirement of hard labor, their labor belonged to
the institution.
Prisoners working within the prison for a private plasma
Outcome treatment center were not employees of the company
The court affirmed the district court's order because which ran the lab. Prisoners working for a state prison
plaintiff inmates worked for programs structured by the industries program and for a prisoner-owned enterprise
prison pursuant to the state's requirement that prisoners within that program were employees of the state under
work at hard labor, and the economic reality was that the Fair Labor Standards Act (FLSA), 29 U.S.C.S.
their labor belonged to the institution. Further, the court 201, et seq. While the court does not believe that
held that plaintiffs were not employees as statutorily prisoners are categorically excluded from the FLSA, the
defined and, therefore, not entitled to a minimum wage. court holds that the inmates who work for programs
structured by the prison pursuant to the state's
LexisNexis Headnotes requirement that prisoners work at hard labor, are not
employees of the state within the meaning of the FLSA.
The Eleventh Amendment, U.S. Const. amend. XI,
affords no immunity to the state from suit for violations
Civil Procedure > ... > Federal & State of the FLSA; however, the state is not a person within
Interrelationships > State Sovereign 42 U.S.C.S. 1983 and the Eleventh Amendment
Immunity > State Immunity shields its officials from claims for damages under
1983.
Criminal Law & Procedure > Postconviction
Proceedings > Imprisonment
Constitutional Law > Bill of Rights > Fundamental
Labor & Employment Law > Employment
Rights > Cruel & Unusual Punishment
Relationships > At Will Employment > Definition of
Employees
HN2[ ] Fundamental Rights, Cruel & Unusual
Punishment
Civil Procedure > Preliminary
Considerations > Federal & State
Interrelationships > General Overview
Arizona prisoners are required by statute to engage in
Civil Procedure > ... > Federal & State hard labor for not less than forty hours per week. Ariz.
Interrelationships > State Sovereign Rev. Stat. 31-251(A).
Immunity > General Overview

Civil Procedure > ... > Federal & State Civil Procedure > Appeals > Appellate
Interrelationships > State Sovereign Jurisdiction > Final Judgment Rule
Immunity > Federal Judicial Limitations
HN3[ ] Appellate Jurisdiction, Final Judgment Rule
Labor & Employment Law > Wage & Hour
Laws > Scope & Definitions > General Overview
The court has jurisdiction over these appeals under 28
Labor & Employment Law > Wage & Hour U.S.C.S. 1291.
Laws > Scope & Definitions > Enterprise Coverage
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 4 of 23
Page 3 of 22
993 F.2d 1387, *1387; 1993 U.S. App. LEXIS 10163, **1

Business & Corporate provides that an action to enforce the FLSA may be
Compliance > ... > Transportation Law > Interstate maintained against any employer, including a public
Commerce > State Powers agency, in any federal or state court of competent
jurisdiction. 216(b). A public agency explicitly includes
Civil Procedure > ... > Federal & State the government of a state or political subdivision
Interrelationships > State Sovereign thereof. 203(x). By this language, congress has made
Immunity > State Immunity unmistakably clear its intention to apply the FLSA to the
states.
Environmental Law > Hazardous Wastes & Toxic
Substances > CERCLA & Superfund > General
Overview
Civil Procedure > ... > Federal & State
Constitutional Law > State Sovereign Interrelationships > State Sovereign
Immunity > Abrogation of Immunity Immunity > State Immunity

Environmental Law > Federal Versus State Labor & Employment Law > Wage & Hour
Law > Federal Preemption Laws > Remedies > General Overview

Governments > Federal Government > US Labor & Employment Law > Wage & Hour
Congress Laws > Scope & Definitions > General Overview

Transportation Law > Interstate Labor & Employment Law > Wage & Hour
Commerce > Federal Powers Laws > Scope & Definitions > Governmental
Employees
HN4[ ] Interstate Commerce, State Powers
HN6[ ] State Sovereign Immunity, State Immunity

Congress has the power under the Commerce Clause,


U.S. Const. art. 1, to annul a state's Eleventh Fair Labor Standards Act (FLSA) claims, including those
Amendment, U.S. Const. amend. XI, immunity. When against state employers, may be heard in federal court.
abrogating a state's immunity, congress must make its The 1966 amendments to the FLSA extending coverage
intention unmistakably clear in the language of the to state employees did not abrogate the states' Eleventh
statute. Amendment, U.S. Const. amend. XI, immunity. An
action to recover such liability may be maintained
against any employer, including a public agency, in any
federal or state court of competent jurisdiction. 29
Business & Corporate Compliance > ... > Wage & U.S.C.S. 216(b). The specific inclusion of public
Hour Laws > Administrative agencies and the addition of any federal or state court
Proceedings > Enforcement Provisions make the intent of congress to render states amenable
to suit under the FLSA in federal court unmistakably
Labor & Employment Law > Wage & Hour clear.
Laws > Scope & Definitions > Governmental
Employees

Labor & Employment Law > Wage & Hour Civil Procedure > ... > Federal & State
Laws > Scope & Definitions > General Overview Interrelationships > State Sovereign
Immunity > State Immunity
HN5[ ] Administrative Proceedings, Enforcement
Provisions Constitutional Law > State Sovereign
Immunity > Abrogation of Immunity

The Fair Labor Standards Act (FLSA), 29 U.S.C.S. Constitutional Law > State Sovereign
203(e)(2)(C), applies to any individual employed by a Immunity > General Overview
state or a political subdivision of a state. The FLSA
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 5 of 23
Page 4 of 22
993 F.2d 1387, *1387; 1993 U.S. App. LEXIS 10163, **1

Constitutional Law > State Sovereign Prisoners are not on the statutory list of workers who
Immunity > Waiver > General Overview are exempted from the Fair Labor Standards Act
(FLSA), 29 U.S.C.S. 213. Specificity in stating
Labor & Employment Law > Wage & Hour exemptions strengthens the implication that employees
Laws > Scope & Definitions > General Overview not thus exempted remain within the FLSA. Congress
has specifically exempted nine broad categories of
HN7[ ] State Sovereign Immunity, State Immunity workers from the minimum wage provisions of the
FLSA, 213(a), but not prisoners. That is a decision for
the congress, not the courts, to make.
The Fair Labor Standards Act (FLSA), 29 U.S.C.S.
201, et seq, 1985 amendments, waives a state's
immunity from being haled into federal court.
Civil Rights Law > Protection of Rights > Prisoner
Rights > Access to Courts

Labor & Employment Law > Wage & Hour Criminal Law & Procedure > Postconviction
Laws > Scope & Definitions > Governmental Proceedings > Imprisonment
Employees
Labor & Employment Law > Wage & Hour
Labor & Employment Law > Wage & Hour Laws > Scope & Definitions > General Overview
Laws > Scope & Definitions > General Overview
HN11[ ] Prisoner Rights, Access to Courts
HN8[ ] Scope & Definitions, Governmental
Employees
Prisoners may have an employment relationship with a
prison. A prisoner may be an employee.
There is no constitutional barrier to applying the Fair
Labor Standards Act, 29 U.S.C.S. 201 et seq., to all
state employees. States may be sued by an employee
Business & Corporate Compliance > ... > Labor &
in federal court for violations of the FLSA.
Employment Law > Wage & Hour Laws > Child
Labor

Constitutional Law > State Sovereign HN12[ ] Wage & Hour Laws, Child Labor
Immunity > General Overview

Labor & Employment Law > Wage & Hour See 29 C.F.R. 570.113(a).
Laws > Scope & Definitions > General Overview

HN9[ ] Constitutional Law, State Sovereign


Labor & Employment Law > Wage & Hour
Immunity
Laws > Scope & Definitions > Definition of
Employees
Congress did not intend the Eleventh Amendment, U.S.
Labor & Employment Law > Employment
Const. amend. XI, to bar Fair Labor Standards Act
Relationships > At Will Employment > Definition of
(FLSA), 29 U.S.C.S. 201 et seq., claims by state
Employees
employees in federal court.
Labor & Employment Law > Employment
Relationships > At Will Employment > Definition of
Labor & Employment Law > Wage & Hour Employers
Laws > Scope & Definitions > General Overview
Labor & Employment Law > Wage & Hour
HN10[ ] Wage & Hour Laws, Scope & Definitions Laws > Scope & Definitions > General Overview
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 6 of 23
Page 5 of 22
993 F.2d 1387, *1387; 1993 U.S. App. LEXIS 10163, **1

Labor & Employment Law > Wage & Hour


Laws > Scope & Definitions > Definition of Employ
Under Arizona law, the state has the authority to require
HN13[ ] Scope & Definitions, Definition of that each able-bodied prisoner engage in hard labor for
Employees not less than forty hours per week. Ariz. Rev. Stat. 31-
251(A).

The Fair Labor Standards Act (FLSA), 29 U.S.C.S. 201,


et seq., requires states to pay their employees the
Constitutional Law > Supremacy Clause > General
minimum wage. Employee is defined as any individual
Overview
employed by an employer, 203(e)(1), including any
individual employed by a state, 203(e)(2)(C).
HN17[ ] Constitutional Law, Supremacy Clause
Employer includes a public agency. 203(d). Employ
includes to suffer or permit to work. 203(g).
Federal law controls their status as employees under
the Fair Labor Standards Act (FLSA), 29 U.S.C.S. 201
Labor & Employment Law > Wage & Hour et seq., and the state cannot rely on 31-254(J) to
Laws > Scope & Definitions > Definition of Employ defeat their claim. Under the Supremacy Clause, U.S.
Const. art. XI, the state statute has no effect on the
Labor & Employment Law > Wage & Hour scope of the FLSA.
Laws > Scope & Definitions > General Overview

HN14[ ] Scope & Definitions, Definition of Employ


Civil Rights Law > Protection of Rights > Prisoner
Rights > General Overview
Whether there is an employment relationship under the
Constitutional Law > Bill of Rights > Fundamental
Fair Labor Standards Act (FLSA), 29 U.S.C.S. 201, et
Rights > Cruel & Unusual Punishment
seq., is tested by economic reality rather than technical
concepts.
HN18[ ] Protection of Rights, Prisoner Rights

Labor & Employment Law > Wage & Hour See Ariz. Rev. Stat. 31-254(J).
Laws > Scope & Definitions > General Overview

HN15[ ] Wage & Hour Laws, Scope & Definitions


Business & Corporate
Compliance > ... > Governments > Agriculture &
Food > Product Promotions
Courts are to consider the totality of the circumstances
of the relationship, including whether the alleged
Criminal Law & Procedure > Postconviction
employer has the power to hire and fire the employees,
Proceedings > Imprisonment
supervises and controls employee work schedules or
conditions of employment, determines the rate and Labor & Employment Law > Wage & Hour
method of payment, and maintains employment records. Laws > Scope & Definitions > General Overview

HN19[ ] Agriculture & Food, Food Product


Constitutional Law > Bill of Rights > Fundamental Promotions
Rights > Cruel & Unusual Punishment

Constitutional Law > Involuntary Servitude The problem of substandard living conditions, which is
the primary concern of the Fair Labor Standards Act, 29
HN16[ ] Fundamental Rights, Cruel & Unusual U.S.C.S. 201, et seq., does not apply to prisoners, for
Punishment whom clothing, shelter, and food are provided by the
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 7 of 23
Page 6 of 22
993 F.2d 1387, *1387; 1993 U.S. App. LEXIS 10163, **1

prison.

Business & Corporate Compliance > ... > Wage &


Hour Laws > Scope & Definitions > Minimum Wage
Labor & Employment Law > Wage & Hour
Laws > Scope & Definitions > General Overview
Criminal Law & Procedure > Postconviction
Proceedings > Imprisonment
HN20[ ] Wage & Hour Laws, Scope & Definitions
HN24[ ] Scope & Coverage, Minimum Wage
See the Fair Labor Standards Act (FLSA), 29 U.S.C.S.
202(a).
Absent some framework similar to the Ashurst-Sumners
Act, 18 U.S.C.S. 1761(c)(2), which allows prisons to
recoup expenses for room and board and requires
Labor & Employment Law > Wage & Hour prisoners to make payments for support and restitution,
Laws > Scope & Definitions > General Overview Congress cannot have intended the Fair Labor
Standards Act (FLSA), 18 U.S.C.S. 201 et seq., to
HN21[ ] Wage & Hour Laws, Scope & Definitions impose a minimum wage obligation that would
jeopardize prison industries programs structured by and
for prisons.
While prevention of unfair competition is one of the five
purposes of the Fair Labor Standards Act (FLSA), 29
U.S.C.S. 201 et seq., no case has ever treated the
Business & Corporate Compliance > ... > Wage &
presence of unfair competition as an element of an
Hour Laws > Scope & Definitions > Minimum Wage
action under the FLSA.
Labor & Employment Law > Wage & Hour
Laws > General Overview
Criminal Law &
Procedure > Sentencing > Supervised Release HN25[ ] Scope & Coverage, Minimum Wage

Labor & Employment Law > ... > Conditions &


Terms > Trade Secrets & Unfair Prisoners who work for programs structured by a prison
Competition > General Overview pursuant to state law requiring hard labor are not
employees of the prison entitled to a minimum wage.
HN22[ ] Sentencing, Supervised Release

Business & Corporate Compliance > ... > Wage &


See the Ashurst-Sumners Act, 18 U.S.C.S. 1761(a).
Hour Laws > Scope & Definitions > Minimum Wage

Business & Corporate Law > ... > Directors &


Business & Corporate Compliance > ... > Wage & Officers > Compensation > General Overview
Hour Laws > Scope & Definitions > Minimum Wage
HN26[ ] Scope & Coverage, Minimum Wage
HN23[ ] Scope & Coverage, Minimum Wage

If the director of the department of corrections enters


The Ashurst-Sumners Act, 18 U.S.C.S. 1761(a), was into a contract with a private person, firm, corporation,
enacted three years before the Fair Labor Standards or association, the compensation shall be as prescribed
Act (FLSA), 29 U.S.C.S. 201 et seq., in no way by the person, firm, corporation or association but shall
creates a right to minimum wages for prisoners under not be below the minimum wage.
the later statute. Prisoners may be paid lower wages
than non-prisoners.
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 8 of 23
Page 7 of 22
993 F.2d 1387, *1387; 1993 U.S. App. LEXIS 10163, **1

Business & Corporate Compliance > ... > Wage & To determine if a governmental agency is an arm of the
Hour Laws > Scope & Definitions > Minimum Wage state, the court looks to state law and examines whether
a money judgment would be satisfied out of state funds,
HN27[ ] Scope & Coverage, Minimum Wage whether the entity performs central governmental
functions, whether the entity may sue or be sued,
whether the entity has the power to take property in its
See Ariz. Rev. Stat. 41-1623(E). own name or only the name of the state, and the
corporate status of the entity.

Civil Procedure > ... > Federal & State


Interrelationships > State Sovereign Civil Rights Law > ... > Elements > Color of State
Immunity > Federal Judicial Limitations Law > General Overview

Governments > State & Territorial HN30[ ] Elements, Color of State Law
Governments > Claims By & Against

Civil Procedure > Preliminary Inmates may maintain an action under 42 U.S.C.S.
Considerations > Federal & State 1983 against the individual officers for prospective relief
Interrelationships > General Overview only.

Civil Procedure > ... > Federal & State


Interrelationships > State Sovereign
Immunity > General Overview Civil Procedure > ... > Summary
Judgment > Burdens of Proof > General Overview
Civil Procedure > ... > Federal & State
Interrelationships > State Sovereign Civil Rights Law > Protection of Rights > Section
Immunity > State Immunity 1983 Actions > Scope

Civil Rights Law > ... > Elements > Color of State HN31[ ] Summary Judgment, Burdens of Proof
Law > General Overview

HN28[ ] State Sovereign Immunity, Federal A 42 U.S.C.S. 1983 plaintiff must allege more than a
Judicial Limitations statutory basis for his claim; he must also allege facts
which support the claim. Summary judgment is
appropriate if a party fails to make a showing sufficient
42 U.S.C.S. 1983 does not abrogate the states' to establish the existence of an element essential to that
Eleventh Amendment, U.S. Const. amend. XI, immunity party's case, and on which the party will bear the burden
from suit. A state is not a person within the meaning of of proof at trial. In order to show an entitlement under
1983. This limitation on 1983 also extends to arms of Ariz. Rev. Stat. 31-254, a prisoner must show that he
the state. is working pursuant to a contract with a private person,
firm, corporation or association. 31-254(A).

Counsel: Michael E. St. George, St. George and Reed,


Business & Corporate Law > Foreign Tempe, Arizona, for the plaintiffs-appellants.
Corporations > General Overview
Anthony B. Ching, Solicitor General of the State of
Civil Rights Law > ... > Elements > Color of State Arizona, Phoenix, Arizona, for the defendants-
Law > General Overview appellees.

HN29[ ] Business & Corporate Law, Foreign Judges: En Banc. Before: BROWNING, SCHROEDER,
Corporations FLETCHER, ALARCON, POOLE, NORRIS, BRUNETTI,
NOONAN, LEAVY, RYMER, and T.G. NELSON, Circuit
Judges.Opinion by Judge Rymer; Dissent by Judge
Norris, with whom Fletcher joins.
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 9 of 23
Page 8 of 22
993 F.2d 1387, *1387; 1993 U.S. App. LEXIS 10163, **1

Opinion by: RYMER prisoners working within the prison for a private plasma
treatment center were not "employees" of Cutter, which
Opinion ran the lab. 2 The panel in these consolidated appeals
held that prisoners working for a state prison industries
program and for a prisoner-owned enterprise within that
[*1389] OPINION program were "employees" of the state under the FLSA.
3 While we do not believe that prisoners are

RYMER, Circuit Judge: categorically excluded from the FLSA, we hold that the
inmates in this case, who worked for programs
Felton Hale, John Leroy Fuller and other inmates in structured by the [**4] prison pursuant to the state's
Arizona correctional facilities who have worked for state requirement that prisoners work at hard labor, are not
prison industries programs seek to be paid the federal "employees" of the state within the meaning of the
minimum wage on the ground that they are "employees" FLSA. The Eleventh Amendment affords no immunity to
of the prison under the Fair Labor Standards Act, 29 the state from suit for violations of the FLSA; however,
U.S.C. 201, et seq. They filed complaints against the the state is not a "person" within 1983 and the
State of Arizona, ARCOR Enterprises (ARCOR) and its Eleventh Amendment shields its officials from claims for
successor Arizona Correctional Industries (ACI), and damages under 1983. As there is no factual basis for
officials of the Arizona Department of Corrections the injunctive relief sought in Hale, we affirm both
(DOC), ARCOR, [**2] and ACI for damages and decisions.
injunctive relief under the FLSA, 42 U.S.C. 1983, and
Arizona law. The district court in Hale granted summary I
judgment in favor of all defendants because it found no
employer-employee relationship under the FLSA and no HN2[ ] Arizona prisoners are required by statute to
jurisdiction over state claims or retrospective federal "engage in hard labor for not less than [*1390] forty
claims because of the Eleventh Amendment. The district hours per week." 4 Ariz. Rev. Stat. 31-251(A).
court in Fuller dismissed all claims for lack of jurisdiction Pursuant to this requirement, Arizona prison authorities
except the 1983 claim for injunctive relief against state have structured various programs for convict labor,
officers; as to it, the district court retained jurisdiction but including the two programs involved in this case. The
stayed further proceedings pending resolution of this Fuller inmates worked for ARCOR (known as ACI since
appeal. The prisoners do not pursue their state law 1987), which is organized pursuant to Ariz. Rev. Stat.
claims. 1 41-1621 et seq. [**5] and operated by the Department
of Corrections. ARCOR sets up and supervises
This appeal requires us to decide whether the FLSA "industries or enterprises . . . for the employment of
applies to prisoners, whether the inmates here [**3] are prisoners in the manufacture . . . of such . . . products as
"employees" who are entitled to be paid a minimum may be needed . . . by a state . . . or for sale to the
wage under the FLSA, and whether the prisoners have public." Ariz. Rev. Stat. 41-1622. Ten to twenty
identified a property interest that is protected under the percent of Arizona prisoners work for the ARCOR
due process clause and gives rise to a claim under 42 correctional industries program, whose goods and
U.S.C. 1983. We must also determine to what extent services include clothing, fabricated steel, livestock,
the prisoners' claims are barred by the Eleventh dairy products, and hotel reservations for Best Western
Amendment. motels. Revenue from ARCOR enterprises is placed in
a revolving fund, and ARCOR pays the inmates who
We consider these questions en banc to resolve the work for it out of that fund. See Ariz. Rev. Stat. 41-
tension between our decision in Gilbreath v. Cutter
Biological, Inc., 931 F.2d 1320 (9th Cir. 1991), and the
panel opinion in this case, Hale v. Arizona, 967 F.2d
2 Judge D.W. Nelson dissented.
1356 (9th Cir. 1992). In Gilbreath, we held that HN1[ ]
3 JudgeFletcher dissented, on the footing that the panel was
bound by Gilbreath.
1 We have consolidated the two separate appeals from 4 Notall inmates fulfill this obligation, because of the absence
inmates in Fuller and Hale. The claims of 296 plaintiffs are of available work. This, however, is immaterial to the issue of
consolidated in Fuller. All have appealed. Only one plaintiff, whether those who do work are "employees" for purposes of
Richard Berry, has appealed in Hale. the FLSA.
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 10 of 23
Page 9 of 22
993 F.2d 1387, *1390; 1993 U.S. App. LEXIS 10163, **5

1624. 5 that case does not "specify the party or parties taking
the appeal" as required by Fed. R. App. P. 3(c) and that
[**6] The prison labor program in Hale, also offered this court therefore lacks appellate jurisdiction as to all
through ARCOR, allows the establishment of an Inmate- parties except John Leroy Fuller. We disagree. All
Operated Business Enterprise (IOBE). The IOBE plaintiffs [**8] in the Fuller action were consolidated
program permits an inmate to organize and operate a pursuant to court order. The notice of appeal in Fuller
business under ARCOR supervision. ARCOR retains a refers in its caption to "JOHN LEROY FULLER
portion of IOBE gross sales to pay for utilities and Plaintiffs" and in its text to "plaintiff consolidated in the
collects a monthly rent. Inmate wages are paid to captioned cause." In Gilbreath, we construed
ARCOR, which makes disbursements to inmate workers substantially identical language as adequately
out of the ARCOR revolving fund. Berry, the only Hale identifying consolidated plaintiffs [*1391] on appeal.
plaintiff who appeals, worked as a bookkeeper and See id., 931 F.2d at 1322-23. The notice of appeal here
office manager for C/A Buckles, an IOBE enterprise is similarly sufficient.
which made and sold western and logo belt buckles to
various entities including the United States Marine We review de novo a district court's grant of either a
Corps, Mountain Bell, U-Haul, and Speed-O-Fam in motion for summary judgment or a motion to dismiss.
London, England. ARCOR leased space for the Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416,
business, outside the prison walls, to the inmate-owner. 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937, 110 L.
C/A Buckles employed a dozen inmates, exhibited and Ed. 2d 664, 110 S. Ct. 3217 (1990). In reviewing the
sent catalogs to prospective buyers, and shipped summary judgment in Hale, we determine, viewing the
hundreds of buckles monthly. 6 evidence in the light most favorable to the non-moving
party, whether there are any genuine issues of material
[**7] II fact and whether the district court correctly applied the
relevant substantive law. Tzung v. State Farm Fire &
HN3[ ] We have jurisdiction over these appeals under Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).
28 U.S.C. 1291. The district court in Hale entered When reviewing dismissal of the Fuller complaint, we
summary judgment as to all claims. The district court in examine the allegations [**9] of the complaint and
Fuller dismissed all claims except the claim for determine whether there is any set of facts which could
prospective relief under 42 U.S.C. 1983, over which it entitle the plaintiffs to the relief they seek. Buckey v.
retained jurisdiction. The court found no just reason for County of Los Angeles, 968 F.2d 791, 794 (9th Cir.),
delay and entered final judgment on the remaining cert. denied, City of Manhattan Beach v. Buckey, 121 L.
claims, which suffices to make its order final and Ed. 2d 536, 113 S. Ct. 599, 113 S. Ct. 600 (1992).
appealable under Fed. R. Civ. P. 54(b). See Continental
Airlines v. Goodyear Tire & Rubber Co., 819 F.2d 1519, III
1524-25 (9th Cir. 1987) (expansively construing
discretion of district court in entering partial summary We must first resolve Arizona's argument that the
judgment under Rule 54(b)). Thus, we have jurisdiction Eleventh Amendment bars a suit under the FLSA
over all claims in these matters except the 1983 claim against a state or its employees. It contends that
for prospective relief in Fuller. amendments which extended FLSA coverage to state
employees did not abrogate the states' Eleventh
The Fuller appellees contend that the notice of appeal in Amendment immunity. Arizona further argues that the
power of the federal government to subject the states to
regulation does not extend to subjecting a state to the
5 Atthe time these actions were filed, inmate wages could not jurisdiction of the federal courts.
be paid out of general state funds. See former Ariz. Rev. Stat.
41-1624(A)(2). This restraint has subsequently been HN4[ ] Congress has the power under the Commerce
deleted. See Ariz. Rev. Stat. 41-1624. Clause to annul a state's Eleventh Amendment
6 Berry
immunity. See Pennsylvania v. Union Gas Co., 491 U.S.
also worked as a clerk in the prison warehouse. The
1, 14-15, 105 L. Ed. 2d 1, 109 S. Ct. 2273 (1989)
warehouse is outside the prison walls, and the job consisted of
inventorying supplies for prison units. He applied for both jobs, (abrogation of Eleventh Amendment immunity by
which are sought after, having first worked as a prison librarian CERCLA). When abrogating a state's immunity,
and a kitchen worker. Congress must "make its intention unmistakably clear in
the language of the statute." Atascadero State Hosp. v.
The inmate owner of C/A Buckles is not a defendant in Hale.
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 11 ofPage
23 10 of 22
993 F.2d 1387, *1391; 1993 U.S. App. LEXIS 10163, **9

Scanlon, 473 U.S. 234, 242, 87 L. Ed. 2d 171, 105 S. violations in state courts, and argues that neither
Ct. 3142 (1985). [**10] Garcia, nor the post-Garcia amendment which gave
states more time to comply with HN7[ ] the FLSA, Fair
As we held in Gilbreath, Congress has made its Labor Standards Amendments of 1985, sec. 7, 99 Stat.
intention clear in the FLSA. By its terms, HN5[ ] the 791 (1985), waives a state's immunity from being haled
FLSA applies to "any individual employed by a State [or into federal court. Arizona cites no authority in support
a] political subdivision of a State." 29 U.S.C. of this argument, and we believe it fails in the face of
203(e)(2)(C). Further, the Act provides that an action to Eleventh Amendment jurisprudence which holds that
enforce the FLSA "may be maintained against any Congress may, if it does so clearly enough, abrogate
employer (including a public agency) in any Federal or immunity from suit as well as from regulation.
State court of competent jurisdiction." 29 U.S.C.
216(b). A public agency explicitly includes "the Garcia, which held that HN8[ ] there is no
government of a State or political subdivision thereof." constitutional barrier to applying the FLSA to all state
29 U.S.C. 203(x). By this language, Congress has employees, 469 U.S. at 554, overruled National League
made unmistakably clear its intention to apply the FLSA of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S.
to the states. Ct. 2465 (1976), which had held that the Tenth
Amendment bars Congress from applying the FLSA to
It has likewise manifested the intention that HN6[ ] the states "in areas of traditional governmental
FLSA claims, including those against state employers, functions." Id. at 855. After the decision in Garcia,
may be heard in federal court. Arizona argues that Congress recognized the greater financial burden states
Employees of the Dep't of Public Health & Welfare v. would have to bear [**13] under Garcia than under
Dep't of Public Health and Welfare, 411 U.S. 279, 36 L. National League of Cities, and amended the Act to give
Ed. 2d 251, 93 S. Ct. 1614 (1973), which held that the them time to adjust. See Fair Labor Standards
1966 amendments to the FLSA extending coverage to Amendments of 1985, S. Rep. No. 159, 99th Cong.,
state employees did not abrogate the states' Eleventh 1984 U.S.C.C.A.N. 651, 654-56. Arizona argues that
Amendment immunity, id. at 285, [**11] controls. this amendment merely gave states more time, but did
However, after the opinion in Employees, Congress not waive the Eleventh Amendment defense to an FLSA
amended 16(b) of the FLSA (29 U.S.C. 216(b)) in action. As we read it, however, the Garcia amendment,
1974. See Fair Labor Standards Amendments of 1974, which provided a grace period for the additional state
6(d)(1), 88 Stat. 55, 61 (1974). Originally, and at the employees Garcia brought within the FLSA, was
time Employees was decided, 16(b) provided: "An consistent with the intent already manifested in
action to recover [the liability for violating the minimum amended 16(b), that states may be sued by an
wage provisions] may be maintained in any court of employee in federal court for violations of the FLSA.
competent jurisdiction . . . ." Fair Labor Standards Act,
16(b), 52 Stat. 1060, 1069 (1938). The 1974 Arizona's argument, therefore, makes too much of the
amendment expanded the definition to provide: "An fact that Garcia was "just" a Tenth Amendment case.
action to recover [such liability] may be maintained Rather, on Eleventh Amendment issues we are guided
against any employer (including a public agency) in any by Union Gas and Scanlon, which direct us to look to
Federal or State court of competent jurisdiction . . . ." 29 the legislation itself. The FLSA, as it has been
U.S.C. 216(b). The specific inclusion of "public amended, leaves no doubt that HN9[ ] Congress did
agencies" and the addition of "any Federal or State not intend the Eleventh Amendment to bar FLSA claims
court" make the intent of Congress to render states by state employees in federal court.
amenable to suit under the FLSA in federal court
unmistakably clear. IV

A
Arizona contends, nevertheless, that there is a
difference between a state's immunity from federal
Assuming there is no Eleventh Amendment barrier to
regulation, which is a Tenth Amendment issue resolved
the FLSA claims in Hale and Fuller, as we have now
by the Supreme Court in Garcia v. San Antonio Metro.
held, Arizona argues that [**14] the FLSA does not
Transit Auth., 469 U.S. 528, 105 S. Ct. 1005, [*1392]
apply to prisoners. Relying on Judge Trott's opinion in
83 L. Ed. 2d 1016 (1985), [**12] and its immunity from
suit in a federal court, which is an Eleventh Amendment
issue. It notes that states may be sued for FLSA
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 12 ofPage
23 11 of 22
993 F.2d 1387, *1392; 1993 U.S. App. LEXIS 10163, **14

Gilbreath, 7 Arizona reasons "that it is highly implausible conclusive of their status under the FLSA, we cannot
that Congress intended the FLSA's minimum wage ignore the similarity between the definitions of
protection [to] be extended to felons serving time in "employee" in the statutes. See Hyland v. New Haven
prison." Gilbreath, 931 F.2d at 1324. While it may be Radiology Assoc., 794 F.2d 793, 796 (2d Cir. 1986)
difficult to believe that Congress actually gave thought ("Since all three statutes [Title VII, the FLSA, and the
to the problem and decided to include prison labor Age Discrimination in Employment Act] have a similar
within the FLSA, we cannot agree that the FLSA purpose - to stamp out discrimination in various forms -
categorically excludes all labor of any inmate. cases construing the definitional provisions of one are
persuasive authority when interpreting the others."). But
As a matter of statutory construction, HN10[ ] see Vanskike v. Peters, 974 F.2d 806, 810 n.5 (7th Cir.
prisoners are not on the statutory list of workers who are 1992) (distinguishing [**17] Baker in context of FLSA),
exempted from the FLSA. See 29 U.S.C. 213. cert. denied, 122 L. Ed. 2d 692, 113 S. Ct. 1303 (1993).
"Specificity in stating exemptions strengthens the While Baker is not controlling in this case, we are
implication that employees not thus exempted . . . constrained not to hold as a matter of law that prisoners
remain within the Act." Powell v. United States Cartridge may never be "employees" of a prison.
Co., 339 U.S. 497, 517, 94 L. Ed. 1017, 70 S. Ct. 755
(1950). [**15] Because Congress has specifically Finally, we are influenced by other circuits which have
exempted nine broad categories of workers from the held that the FLSA may be applicable to prison inmates
minimum wage provisions of the FLSA, see 29 U.S.C. under certain circumstances. See Vanskike, 974 F.2d
213(a), but not prisoners, we are hard pressed to at 808 ("We do not question the conclusions of Carter,
conclude that it nevertheless intended for all inmates to Watson and [the panel opinion in] Hale that prisoners
be excluded. That is a decision for the Congress, not are not categorically excluded from the FLSA's
the courts, to make. See Carter v. Dutchess Community coverage simply because they are prisoners."); Watson
College, 735 F.2d 8, 13 (2d Cir. 1984) ("It would be an v. Graves, 909 F.2d 1549 (5th Cir. 1990) (prisoners on
encroachment upon the legislative prerogative for a work release); Carter (prisoner tutoring community
court to hold that a class of unlisted workers is excluded college students). For prudential reasons, we avoid
from the Act."). 8 unnecessary conflicts with other circuits and are not
persuaded that we should part company on this point.
[**16] [*1393] In addition to what we infer from the
scheme of this statute, we have previously indicated in B
connection with another statute that HN11[ ] prisoners
The question we must resolve is whether inmates
may have an employment relationship with a prison. In
working for a prison, in a program structured by the
Baker v. McNeil Island Corrections Ctr., 859 F.2d 124
prison pursuant to state law requiring prisoners to work
(9th Cir. 1988), which was a Title VII action by a
at hard labor, are "employees" of the prison within the
prisoner who claimed he was denied employment in the
meaning of the FLSA.
prison library on account of his race, we held that a
prisoner may be an "employee." 859 F.2d at 127-28.
[**18] Prisoners first argue that they are employees
Although the status of prisoners under Title VII is not
within the FLSA because the State of Arizona and
ARCOR "suffer or permit [them] to work." 29 U.S.C.
203(g). 9 They suggest that Arizona does not have to
7 Judge Trott's view that the FLSA can never apply to establish a correctional industries program, but chose to
prisoners was not joined by either the concurring or dissenting let ARCOR hire inmate labor; that an employment
judge. relationship exists because ARCOR profits from the
8 The Second Circuit's decision in Carter, holding that the
FLSA may apply to a prisoner who works for an outside
employer, 735 F.2d at 15, was handed down in 1984. 9 HN12[ ] They also point to child labor regulations which
Congress has amended the FLSA twice since then, see Fair
state:
Labor Standards Amendments of 1985, 99 Stat. 787 (1985),
and Fair Labor Standards Amendments of 1989, 103 Stat. 98 The words "suffer or permit to work" include those who suffer
(1989), without taking action to limit Carter. Under these by a failure to hinder and those who permit by acquiescence in
circumstances, congressional silence on the applicability of addition to those who employ by oral or written contract.
the FLSA to prisoners is some indication of its intent not to
exempt prisoners from the FLSA. 29 C.F.R. 570.113(a).
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 13 ofPage
23 12 of 22
993 F.2d 1387, *1393; 1993 U.S. App. LEXIS 10163, **18

work inmates perform; and that even though penological prison-structured program because they have to. 10 In
interests may be paramount in the prison-prisoner Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992), cert.
relationship, an employer-employee relationship may denied, 122 L. Ed. 2d 692, 113 S. Ct. 1303
exist at the same time. Arizona responds that 203(g)'s (1993), [**21] the plaintiff inmate worked in Illinois
language must be "understood with common sense," prisons as a janitor, kitchen worker, gallery worker, and
Walling v. Jacksonville Terminal Co., 148 F.2d 768, 770 knit-shop worker. As Judge Cudahy wrote for the court,
(5th Cir. 1945), and the common sense of it is that
inmates are required to work as a function of their
incarceration.
the Bonnette factors fail to capture the true nature of the
[**19] By its terms, HN13[ ] the FLSA requires states relationship for essentially they presuppose a free labor
to pay their employees the minimum wage. "Employee" situation. Put simply, the DOC's "control" over [the
is defined as "any individual employed by an employer," prisoner] does not stem from any remunerative
29 U.S.C. 203(e)(1), including "any individual relationship or bargained-for exchange of labor for
employed by a State," 29 U.S.C. 203(e)(2)(C). consideration, but from incarceration itself. The control
"Employer" includes "a public agency," 29 U.S.C. that the DOC exercises over a prisoner is nearly total,
203(d). "Employ" includes "to suffer or permit to work." and control over his work is merely incidental to that
29 U.S.C. 203(g). general control.

The Supreme Court has instructed that courts are to 974 F.2d at 809. [**22] See also Gilbreath, 931 F.2d at
interpret the term "employ" in the FLSA expansively. 1331 (no employment relationship because "inmate
See Nationwide Mut. Ins. Co. v. Darden, 117 L. Ed. 2d labor belongs to the institution") (concurring opinion);
581, 112 S. Ct. 1344, 1350 (1992). It has also held that, Harker v. State Use Indus. Envelope Shop Inmates, 990
as a general rule, HN14[ ] whether there is an F.2d 131 (4th Cir. 1993) (quoting Vanskike; citing
employment relationship under the FLSA is tested by Gilbreath); Alexander v. Sara, Inc., 721 F.2d 149, 150
"'economic reality' rather than 'technical concepts.'" (5th Cir. 1983) ("there was no employer-employee
Goldberg v. Whitaker House Coop., 366 U.S. 28, 33, relationship, because the inmates' labor belonged to the
[*1394] 81 S. Ct. 933, 936, 6 L. Ed. 2d 100 (1961). penitentiary"). Cf. Alvarado Guevara v. INS, 902 F.2d
394, 396 (5th Cir. 1990) (INS detainees who "are under
We elaborated the economic reality test in Bonnette v. the direct supervision and control of a government entity
California Health and Welfare Agency, 704 F.2d 1465 should not be protected under the FLSA").
(9th Cir. 1983) by indicating that HN15[ ] courts are to
consider the totality [**20] of the circumstances of the In Bonnette we were considering whether chore workers
relationship, including whether the alleged employer has paid for by California and federal funds but supervised
the power to hire and fire the employees, supervises by the persons for whom they provided home care
and controls employee work schedules or conditions of services were employees under the FLSA. Bonnette,
employment, determines the rate and method of 704 F.2d at 1467-68. The case of inmate labor is
payment, and maintains employment records. Id. at different from this type of situation where labor is
1470. While these factors "provide a useful framework exchanged for wages in a free market. Convicted
for analysis . . ., they are not etched in stone and will not criminals do not have the right freely to sell their labor
be blindly applied." Id. and are [**23] not protected by the Thirteenth
Amendment against involuntary servitude. See Draper
Inmates argue that the prison had the right to "hire and v. Rhay, 315 F.2d 193, 197 (9th Cir.), cert. denied, 375
fire" them by allowing or disallowing them to work, U.S. 915, 11 L. Ed. 2d 153, 84 S. Ct. 214 (1963). HN16[
controlled the time and conditions under which they ] Under Arizona law, the state "has the authority to
worked, determined the rate of pay, and kept records.
Arizona argues that it has only a security interest in
inmates and maintains control over an inmate employee 10 Inmates submit that it is significant that they had to apply for
as it does over any convicted inmate in its custody. the work they did and were screened for security and other
purposes. The fact that prison authorities may have structured
Regardless of how the Bonnette factors balance, we join certain programs more selectively than others does not,
the Seventh Circuit in holding that they are not a useful however, make them less of a prison-structured program
framework in the case of prisoners who work for a pursuant to the State of Arizona's requirement that prisoners
work at hard labor.
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 14 ofPage
23 13 of 22
993 F.2d 1387, *1394; 1993 U.S. App. LEXIS 10163, **23

require that each able-bodied prisoner . . . engage in claim. Under the Supremacy Clause, this state statute
hard labor for not less than forty hours per week . . . ." has no effect on the scope of the FLSA.
Ariz. Rev. Stat. 31-251(A). Therefore, as Vanskike
focused the question: [**25] However, we are influenced by the fact that no
other circuit has construed the relationship between a
The Bonnette factors, with their emphasis on control prison and a prisoner with a hard-time obligation who
over the terms and structure of the employment works on a program structured by the prison as an
relationship, are particularly appropriate where (as in employment relationship within the FLSA. See
Bonnette itself) it is clear that some entity is an Vanskike; Alexander v. Sara, Inc., 559 F. Supp. 42
"employer" and the question is which one. The dispute (M.D. La.) (labor in plasmapherisis program run by
in this case is a more fundamental one: Can [these] outside company belonged to institution), aff'd, 721 F.2d
prisoners plausibly be said to be "employed" in the 149 (5th Cir. 1983); Sims v. Parke Davis & Co., 334 F.
relevant sense at all? Supp. 774 (E.D. Mich.) (work assignments up to prison),
aff'd, 453 F.2d 1259 (6th Cir. 1971), cert. denied, 405
974 F.2d at 809. U.S. 978, 31 L. Ed. 2d 254, 92 S. Ct. 1196 (1972);
Hudgins v. Hart, 323 F. Supp. 898 (E.D. La. 1971)
We think not, because in both Fuller, where the inmates
(prisoner worked at plasma treatment center pursuant to
worked for ARCOR, and Hale, where Berry worked both
sentence to hard labor); see also Watson (distinguishing
for ARCOR [*1395] and an inmate operated
Alexander, Hudgins, and Young v. Cutter Biological, 694
enterprise, the economic reality of the relationship
F. Supp. 651 (D. Ariz. 1988), aff'd sub nom. Gilbreath v.
between the worker and the entity for which work was
Cutter Biological, 931 F.2d 1320 (9th Cir. 1991)
performed lies in the relationship [**24] between prison
because of hard-time [**26] obligation and holding that
and prisoner. It is penological, not pecuniary. As Judge
prisoner on work release program was employee of
Cudahy wrote in Vanskike:
outside company for whom work was performed). This
Prisoners are essentially taken out of the national
follows because, as the Fifth Circuit put it in Watson,
economy upon incarceration. When they are assigned
"the 'hard time' inmates' labor does indeed 'belong to
work within the prison for purposes of training and
the institution' and can be disposed of legitimately within
rehabilitation, they have not contracted with the
the discretion of the correction facility or agency." 909
government to become its employees. Rather, they are
F.2d at 1555.
working as part of their sentences of incarceration.
Because prisoners in Hale and Fuller worked for
974 F.2d at 810. Thus, the totality of the circumstances programs structured by the prison pursuant to the
does not bespeak an employer-employee relationship state's requirement that prisoners work at hard labor,
as contemplated by the FLSA. the economic reality is that their labor belonged to the
institution. We hold, therefore, that they were not
In this view we are not influenced by Arizona's reliance "employees" of the prison entitled to be paid a minimum
on state law which declares that an inmate is not an wage under the FLSA.
employee of the State or the DOC, Ariz. Rev. Stat. 31-
254(J) (formerly Ariz. Rev. Stat. 31-254(I)). 11 C
Prisoners correctly contend that HN17[ ] federal law
controls their status as employees under the FLSA and Inmates urge that to deny them a minimum wage would
that the state cannot rely on 31-254(J) to defeat their thwart the intent of Congress in the FLSA to protect
against unfair competition in the market place for both
goods and labor. They argue that putting a floor under
the wages prisoners are paid to make prison goods
11 HN18[ ] Section 31-254(J) provides: assures the private sector in competition with those
goods a fair opportunity of gaining the customer, and
Nothing in this section is intended to restore, in whole or in
part, the civil rights of any prisoner. No prisoner compensated they make the point that the mere fact that prison
under this section shall be considered as an employee or to be workers are "captive" does [**27] not make their
employed by the state or the department of corrections, nor product less intrusive upon interstate commerce if, as
shall any such prisoner come within any of the provisions of here, the products enter the stream of interstate
the workers' compensation . . . or be entitled to any benefits commerce. Arizona counters that the primary purpose of
thereunder whether on behalf of himself or of any other the FLSA is to promote and improve the standard of
person.
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 15 ofPage
23 14 of 22
993 F.2d 1387, *1395; 1993 U.S. App. LEXIS 10163, **27

living of workers, whereas the Ashurst-Sumners Act, ch. HN19[ ] the problem of substandard living conditions,
412, 49 Stat. 494 (1935) (codified as amended at 18 which is the primary concern of the FLSA, does not
U.S.C. 1761-1762 (1992)), which was enacted apply to prisoners, for whom clothing, shelter, and food
before the FLSA to criminalize the transportation of are provided by the prison. See Vanskike, 974 F.2d at
prison-made goods in interstate commerce, was 810 ("the payment of minimum wage for a prisoner's
intended to prohibit and penalize unfair competition in work in prison would not further the policy of ensuring a
the market for products. [*1396] It contends that 'minimum standard of living'"); Alexander, 721 F.2d at
Ashurst-Sumners in effect occupies the field for 150 (labor of inmates sentenced to hard labor belongs
production of prison goods and payment of wages to to the institution, so there is no need to protect "the
prisoners and for this reason, Arizona argues, Congress standard of living and general well-being of the
did not intend the FLSA to apply to prison labor. worker [**29] in American industry").
Inmates, on the other hand, see Ashurst-Sumners as an
extension of the FLSA because its purpose, like that of [**30] Nor do we believe that a different result is
the FLSA, is to promote the lot of the individual worker required because of Congress's concern that
and protect other workers from unfair competition from substandard wages cause unfair competition. Even
products made by underpaid labor. though "unfair competition," broadly conceived,
encompasses both product and labor markets, the effect
Our conclusion that prisoners in these cases are not in the labor market is what prompted congressional
"employees" of the prison entitled to a minimum wage is concern with unfair competition in the FLSA. As
consistent with [**28] the purpose of the FLSA. It was President Roosevelt's message to Congress
enacted because Congress found that the existence "in accompanying the FLSA stated:
industries engaged in commerce or in the production of
goods for commerce" 12 of labor conditions detrimental And so to protect the fundamental interests of free labor
to maintaining minimum standards of living necessary and a free people we propose that only goods which
for health, efficiency and general well-being of workers have been produced under conditions which meet the
perpetuates substandard conditions among workers, minimum standards of free labor shall be admitted to
burdens commerce, constitutes an unfair method of interstate commerce.
competition in commerce, leads to labor disputes, and
President Roosevelt's Message to Congress on the Fair
interferes with the orderly and fair marketing of goods.
Labor Standards Act, May 24, 1937, in S. Rep. No. 884,
29 U.S.C. 202(a). 13 We agree with Arizona that
75th Cong., 1st Sess., at 2. The Supreme Court
recognized the same point in Powell:
In this Act [the FLSA], the primary purpose of Congress
12 "'Industry' means a trade, business, industry, or other was not to regulate interstate commerce as such. It was
activity, or branch or group thereof, in which individuals are to eliminate, as rapidly as practicable, substandard labor
gainfully employed." 29 U.S.C. 203(h). This definition does conditions throughout the nation. It sought to raise living
not neatly fit prison industries, even those engaged in the standards without substantially curtailing employment or
production of goods for commerce, since prisoners whose
earning power.
labor is required by statute cannot be said to be "gainfully
employed." 339 U.S. at 509-10. [**31] Congress has quoted this
13 HN20[
language several times in the legislative history of
] Section 202(a) declares in full:
subsequent amendments to the FLSA. See, e.g., Fair
(a) The Congress finds that the existence, in industries Labor Standards Amendments of 1961, S. Rep. No.
engaged in commerce or in the production of goods for 145, 87th Cong., 1961 U.S.C.C.A.N. 1620, 1625; Fair
commerce, of labor conditions detrimental to the maintenance Labor Standards Amendments of 1974, H.R. Rep. No.
of the minimum standard of living necessary for health, 913, 93rd Cong., 1974 U.S.C.C.A.N. 2811, 2817. Thus,
efficiency, and general well-being of workers (1) causes
while the fact that prison-made goods are sold in
commerce and the channels and instrumentalities of
interstate commerce implicates [*1397] congressional
commerce to be used to spread and perpetuate such labor
concern with unfair competition, nothing in the FLSA
conditions among the workers of the several States; (2)
burdens commerce and the free flow of goods in commerce; indicates that that fact alone should convert the
(3) constitutes an unfair method of competition in commerce;
(4) leads to labor disputes burdening and obstructing commerce . . . .
commerce and the free flow of goods in commerce; and (5)
interferes with the orderly and fair marketing of goods in 29 U.S.C. 202(a).
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 16 ofPage
23 15 of 22
993 F.2d 1387, *1397; 1993 U.S. App. LEXIS 10163, **31

relationship between prison and prisoner to one of from cheaply made prison goods by eliminating the low-
employer-employee such that prisoners working on a labor-cost advantage)." 974 F.2d at 812; see also
program structured by the prison are entitled to a Harker, slip op. at 6-7.
minimum wage. 14
Ashurst-Sumners has since been amended, most
[**32] We are buttressed in this view because substantively in 1979 when Congress excepted goods
Congress has specifically addressed its concern with made by prisoners in pilot projects who are paid the
unfair competition in the products market from prison- prevailing wage in the locality, less 80% for taxes, room
made goods in the Ashurst-Sumners Act. 15 [**33] That and board, family support payments and victim
Act was intended to combat "the evils attending the sale compensation. Justice System Improvement Act of
of [prison-made] goods in competition with goods 1979, 827(a), 93 Stat. 1215 (1979) (codified as
manufactured and produced by free labor," S. Rep. No. amended at 18 U.S.C. 1761(c) (1992)). 17 [**35]
906, 74th Cong., 1st Sess. (1935), and "proceeded Therefore, legislation dealing with the distribution of
upon the view 'that free labor, properly compensated, prisoner-made goods [**34] in commerce, and in
cannot compete successfully with the enforced and competition with similar products produced by others,
unpaid or underpaid convict labor of the prison.'" has been in place throughout the history of the FLSA.
Kentucky Whip & Collar Co. v. Illinois Cent. Ry. Co., 299 This suggests that Congress did not intend its general
U.S. 334, 351, 81 L. Ed. 270, 57 S. Ct. 277 (1937). 16 concern with unfair competition in the FLSA to require
As Judge Cudahy wrote in Vanskike, "it is difficult to payment of minimum wages to prisoners working for
imagine that Congress would have enacted legislation in prison programs, as its more specific concern with unfair
1938 that rendered its recently passed prison-goods law competition on account of prison-made goods had been
essentially superfluous (for the FLSA, so construed, dealt with in the Ashurst-Sumners Act. Rather, the fact
would have addressed the problem of unfair competition that Ashurst-Sumners precludes - and prescribes a
remedy in the form of criminal sanctions for -
introduction of low-cost prison goods into the channels
14 We disagree with the dissent's contention that Congress's of commerce to protect private business from
stated concern with unfair competition in 202(a) of the FLSA competition in the product market indicates that
controls the determination of the presence of an employment Congress's concern with unfair competition in the FLSA
relationship, as defined in 203 of the FLSA. HN21[ ] While will not be subverted by declining to apply its minimum
prevention of unfair competition is one of the five purposes of wage standards to convict labor in prison-structured
the FLSA, see supra note 13, no case has ever treated the programs. 18
presence of unfair competition as an element of an action
under the FLSA.

15 HN22[ ] Section 1 of the Act, as amended, provides: 17 The IOBE program in Hale received a certificate of
(a) Whoever knowingly transports in interstate commerce or compliance with 18 U.S.C. 1761(c). Inmates suggest that
from any foreign country into the United States any goods, this approval was based on false representations by ARCOR;
wares, or merchandise manufactured, produced, or mined, however, whether Arizona is or is not in compliance with
wholly or in part by convicts or prisoners, except convicts or 1761 is not material to this appeal. Both parties agree that the
prisoners on parole, supervised release, or probation, or in Ashurst-Sumners Act is a criminal statute that affords no
any penal or reformatory institution, shall be fined not more private, civil right of action. There is, in any event, no evidence
than $ 1,000 or imprisoned not more than one year, or both. of criminal prosecution for non-compliance.

18 U.S.C. 1761(a). 18 The dissent argues that the FLSA and the Ashurst-Sumners
Act are "mutually supplementary," like the FLSA and the
16 Whatever the views of Congress on unfair competition in Walsh-Healey Act, ch. 881, 49 Stat. 2036 (codified as
adopting HN23[ ] the Ashurst-Sumners Act, it is clear that amended at 41 U.S.C. 35-45) as interpreted in Powell, 339
the statute, which was enacted three years before the FLSA, U.S. at 515-20. Dissent at 4342. We disagree for several
in no way creates a right to minimum wages for prisoners reasons. First, the Walsh-Healey Act applies to "all persons
under the later statute. See Wentworth v. Solem, 548 F.2d employed" (41 U.S.C. 35(b)) on government contracts who,
773, 775 (8th Cir. 1977) (no private cause of action for unlike prisoners working pursuant to a hard labor requirement,
minimum wages under 18 U.S.C. 1761). Indeed, the fit the definition of "employees" under the FLSA. Second, the
implication of the Ashurst-Sumners Act is that prisoners may Walsh-Healey Act itself provides that it "shall not apply to
be paid lower wages than non-prisoners - otherwise the convict labor which satisfies the conditions of section 1761(c)
statute would not be necessary. [of the amended Ashurst-Sumners Act] . . . ." 41 U.S.C.
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 17 ofPage
23 16 of 22
993 F.2d 1387, *1397; 1993 U.S. App. LEXIS 10163, **34

[**36] [*1398] Finally, in considering whether Except as prohibited by applicable provisions of the
Congress intended the FLSA to encompass convict United States Code, inmates of correctional institutions
labor in prison-structured programs, we cannot ignore of this state may be employed in the manufacture and
the fact that prison industries programs have existed for processing of products for introduction into interstate
a long time, Congress has been aware at least since commerce, so long as they are paid no less than the
passage of the Ashurst-Sumners Act in 1935 that prevailing minimum wage.
prison-produced goods pose a threat to competition,
and important penological purposes are served by these Inmates seek to enforce these rights under 42 U.S.C.
programs. Correctional industries of the sort sponsored 1983. [**38] 19
by ARCOR in these cases occupy idle prisoners, reduce
A
disciplinary problems, nurture a sense of responsibility,
and provide valuable skills and job training. See Sharon
The State of Arizona argues that the Eleventh
Goodman, Note, Prisoners as Entrepreneurs:
Amendment bars inmates' 1983 claims for monetary
Developing a Model for Prisoner-Run Industry, 62 B.U.
damages and that 1983 does not apply to a state or its
L. Rev. 1163, 1163-64 (1982) (citing various authority).
officials. HN28[ ] Section 1983 does not abrogate the
HN24[ ] Absent some framework similar to Ashurst-
states' Eleventh Amendment immunity from suit. See
Sumners, which allows prisons to recoup expenses for
Quern v. Jordan, 440 U.S. 332, 344-45, 59 L. Ed. 2d
room and board and requires prisoners to make
358, 99 S. Ct. 1139 (1979). Furthermore, a state is not
payments for support and restitution, 18 U.S.C.
"person" within the meaning of 1983. See Will v.
1761(c)(2), Congress cannot have intended the FLSA to
Michigan Dep't of State Police, 491 U.S. 58, 65-66, 105
impose a minimum wage obligation that would
L. Ed. 2d 45, 109 S. Ct. 2304 (1989). This limitation on
jeopardize prison industries programs structured by and
1983 also extends to "arms of the State." Id. at 70.
for prisons.

[**37] For these reasons, we conclude that the Inmates contend that the ARCOR program is financially
economic reality in Hale and Fuller - that HN25[ ] separate from the state, in [*1399] that its monies do
prisoners who work for programs structured by a prison not pass through the state general fund. Because [**39]
pursuant to state law requiring hard labor are not ARCOR is like a private business, generating income
"employees" of the prison entitled to a minimum wage - apart from tax revenue or legislative appropriation, they
comports with the purpose of the FLSA. suggest an award in this case would not impact the
state treasury and thus does not implicate the Eleventh
V Amendment.

Inmates also argue that Ariz. Rev. Stat. 31-254 and We have no trouble concluding that the Arizona
41-1623(E) (now repealed) give them a liberty interest in Department of Corrections is an arm of the state.
minimum wages of which they were deprived without Whether ARCOR is, too, is a closer question. HN29[ ]
due process of law. Section 31-254(A) provides, in part: To determine if a governmental agency is an arm of the
state, we look to state law and examine "whether a
HN26[ ] If the director [of the DOC] enters into a money judgment would be satisfied out of state funds,
contract . . . with a private person, firm, corporation or whether the entity performs central governmental
association the compensation shall be as prescribed by functions, whether the entity may sue or be sued,
the person, firm, corporation or association but shall not whether the entity has the power to take property in its
be below the minimum wage. own name or only the name of the state, and the
corporate status of the entity." Mitchell v. Los Angeles
At the time the events at issue here took place, HN27[ Community College Dist., 861 F.2d 198, 201 (9th Cir.
] 41-1623(E) provided: 1988), cert. denied, 490 U.S. 1081, 104 L. Ed. 2d 663,
109 S. Ct. 2102 (1989).
35(d). Third, the FLSA did not render the Walsh-Healey Act
superfluous - as it would have rendered the Ashurst-Sumners
Act if applied to prison labor - because "the 'prevailing
minimum wages' required by the Walsh-Healey Act [are in 19 As noted, supra at 6, we lack jurisdiction over the Fuller
most instances] more advantageous to employees than the plaintiffs' claim for prospective relief against state officials
minimum wages prescribed by the [FLSA] . . . ." Powell, 339 under 1983, because the district court in Fuller did not enter
U.S. at 519. final judgment as to that claim and retained jurisdiction as to it.
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 18 ofPage
23 17 of 22
993 F.2d 1387, *1399; 1993 U.S. App. LEXIS 10163, **39

Arizona law treats ARCOR as a part of the state law.


government. See Ariz. Rev. Stat. 41-1621, et seq.
ARCOR is managed by the director of the DOC, Ariz. In Piatt, we were concerned with a prisoner's allegation
Rev. Stat. 41-1623(A), and intermingles its funds with that he had worked as part of a contract with a private
the state treasury, Ariz. Rev. Stat. [**40] 41-1624(C). entity and was therefore entitled to pay at least equal to
The first two Mitchell factors therefore weigh in favor of the minimum wage under 31-254. We held that the
finding that ARCOR is an arm of the state: a money state had not deprived Piatt of a constitutionally
judgment against ARCOR would be satisfied out of state protected liberty interest, but that he could not be denied
funds, since the authorized purposes for the ARCOR the property right to compensation created by statute
revolving fund do not include payment of judgments, without a meaningful hearing at a meaningful time.
Ariz. Rev. Stat. 41-1624(A), and ARCOR participates Piatt, 773 F.2d at 1036. Berry's request in this case is
in the central governmental function of operation of different, however, because he did not work for a private
prisons. Arizona law is not explicit as to the final three entity pursuant to a contract such that 31-254's
Mitchell factors. However, inmates admit in their obligation was ever triggered.
pleadings that ARCOR is a subdivision of the State of
Arizona. See, e.g., Hale First Amended Complaint HN31[ ] A 1983 plaintiff must allege more than a
("defendant ARCOR Enterprises . . . [is a] subdivision[] statutory basis for his claim; he must also allege facts
of defendant state"); Fuller Complaint (same). Cf. Sable which support the claim. Summary judgment is
Communications of California, Inc. v. Pacific Tel. and appropriate if "a party . . . [*1400] fails to make a
Tel. Co., 890 F.2d 184, 191 (9th Cir. 1989) (California showing sufficient to establish the existence of an
Public Utilities Commission is an arm of the state); element essential to that party's case, and on which the
Thompson v. City of Los Angeles, 885 F.2d 1439, 1442- party will bear the burden of proof at trial." Celotex Corp.
43 (9th Cir. 1989) (University of California is an arm of v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S.
the state). For these reasons, we conclude that ARCOR Ct. 2548 (1986). In order to show an entitlement under
is an arm of the State of Arizona and that it is not a 31-254, a prisoner must show that he is [**43] working
person within 1983. pursuant to "a contract . . . with a private person, firm,
corporation or association." Ariz. Rev. Stat. 31-254(A).
[**41] Inmates argue that they may obtain monetary We agree with the district court that in Hale, "there is no
relief against the individual officials because they were evidence supporting a claim that the prison's
acting outside the scope of their duties by refusing to authorization of the buckle shop constituted a contract
follow the statutory duty to pay minimum wages. This as defined by the Arizona statute." Berry may not rely on
allegation does not, however, avoid the Eleventh 41-1623(E), which does not require a contractual
Amendment bar as the conduct complained of is not relationship with a private entity, because he is limited to
personal, and money damages for wages due would be prospective relief by the Eleventh Amendment and this
paid out of the state treasury regardless of whether the statute has been repealed. Accordingly, we affirm the
officials were acting in accord with statutory duties. See district court's grant of summary judgment on Berry's
Edelman v. Jordan, 415 U.S. 651, 653, 677, 39 L. Ed. 1983 claim for prospective relief against state officers.
2d 662, 94 S. Ct. 1347 (1974). Therefore, HN30[ ]
inmates may maintain an action under 1983 against VI
the individual officers for prospective relief only. See Ex
We conclude that the notice of appeal in Fuller was
parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441
proper; that the Eleventh Amendment does not bar the
(1908) (injunctive relief available under 1983 against
prisoners' FLSA claim; that there is no employer-
state official).
employee relationship between the prisoners and the
B state under the FLSA; that the State of Arizona, the
DOC, and ARCOR are not "persons" within the meaning
Berry is the only appellant whose claim for injunctive of 42 U.S.C. 1983; that the claims for monetary
relief is before us. He asserts a protected interest in damages against the individual officers are barred by
minimum wages under Arizona law. He contends that the Eleventh Amendment; and that the district court in
he seeks no more than the plaintiff in Piatt v. [**44] Hale properly granted summary judgment on the
MacDougall, 773 F.2d 1032 (9th Cir. 1985) (en banc), claim for injunctive relief under 1983 against the
and that Piatt establishes a protected liberty interest in individual state officials. Both judgments are therefore
recovery of wages accrued under [**42] color of state AFFIRMED.
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 19 ofPage
23 18 of 22
993 F.2d 1387, *1400; 1993 U.S. App. LEXIS 10163, **44

Dissent by: NORRIS I

Dissent By its own terms, the FLSA covers these Arizona


prisoners. The [**46] Act says "every employer shall
pay to each of his employees . . . not less than $ 4.25
NORRIS, Circuit Judge, with whom Circuit Judge an hour." 29 U.S.C. 206(a). The Act includes in its
FLETCHER joins, dissenting: definition of "employee" any "individual employed by a
State." 29 U.S.C. 203(e)(2)(C). True to its
Free labor, properly compensated, cannot compete conventional meaning, "employ" as used in the FLSA
successfully with the enforced and unpaid or underpaid means "to suffer or permit to work," 29 U.S.C. 203(g),
convict labor of the prison. which describes [*1401] the obligation (or opportunity)
the State of Arizona afforded Richard Berry. The statute
Whitfield v. Ohio, 297 U.S. 431, 439, 80 L. Ed. 778, 56 lists a number of exemptions to its coverage, but prison
S. Ct. 532 (1936). labor is not on the list. See 29 U.S.C. 213. Thus,
under the plain language of the Act, the appellants are
Richard Berry worked at C/A Buckles, a business that employees who must be paid at least $ 4.25 an hour.
employed about a dozen workers and produced belt
buckles for groups such as the Marine Corps, U-Haul, The majority recognizes all this. It acknowledges that
and the University of Texas Longhorns booster club. prisoners are not included on the statute's list of
Today, the majority holds that the State of Arizona is not exemptions, and that "'specificity in stating exemptions
required to pay Berry or his co-workers the federally- strengthens the implication that employees not thus
mandated minimum wage because they were inmates exempted . . . remain within the Act.'" Opinion at 4317
at the Arizona State Prison, working for a "prison- (quoting Powell v. United States Cartridge Co., 339 U.S.
structured program" pursuant to Arizona's requirement 497, 517, 94 L. Ed. 1017, 70 S. Ct. 755 (1950)). [**47]
that prisoners work at hard labor. In so holding, the The majority cites approvingly Ninth Circuit case law
majority removes by fiat a large, if ill-defined, group of making working prisoners employees for purposes of
workers from the coverage of the Fair Labor Standards Title VII, and case law from other circuits interpreting the
Act ("FLSA"), judicially creating an exemption not found FLSA the same way. Id. at slip 4318. The majority also
in the statute. doffs its hat to the Supreme Court, acknowledging that
the Court has "instructed [us] to interpret the term
In passing the FLSA, [**45] Congress sought to 'employ' in the FLSA expansively." Opinion at 4319
improve the standard of living of workers across the (quoting Nationwide Mut. Ins. Co. v. Darden. 117 L. Ed.
land by outlawing substandard wages in all industries 2d 581, 112 S. Ct. 1344, 1350 (1992)). But after saying
competing in interstate commerce, subject only to that the FLSA does not "categorically exclude" inmate
narrow and explicit exceptions. The majority adds an labor, the majority nevertheless decides that prisoners
exemption for the prisoners in this case because they working in programs "structured by a prison pursuant to
are forced to work, and in any case do not need to make state law requiring hard labor" are in fact excluded. Id. at
a living wage. The majority ignores the obvious point slip 4317, 4329-30.
that precisely for these reasons prisoners are unable to
demand the minimum wage without the power of the law The first problem with the majority's holding is that it
behind them. By focusing too narrowly on the technical lacks any grounding in the statute. The crux of the
legal relationship between the State of Arizona and majority's argument is that the FLSA does not apply
Richard Berry, the majority slights Congress' major because prisoners do not contract for their labor in a
concern - barring the products of subminimum wage traditional bargained-for exchange, but are forced to
labor from the channels of interstate commerce. When work. See opinion at 4320- 24. While the statute
this case is understood in light of Congress' concern expressly excludes from its definition of "employee" "any
with the pernicious competitive effect of cheap labor, it individual who volunteers to perform services for a
becomes unnecessary to have any "particular sympathy public [**48] agency," 29 U.S.C. 203(e)(4) (emphasis
for prison inmates" to conclude that the FLSA applies to added), it makes no special provision for those who are
prison labor. Gilbreath v. Cutter Biological, Inc., 931 forced to work. Indeed, if being forced to work means
F.2d 1320, 1332 (9th Cir. 1991) (D.W. Nelson, J., "being subject to" work, then in forcing the prisoners to
dissenting). work the state "suffers" them to do so. See Random
House College Dictionary 1313 (rev. ed.). By the very
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 20 ofPage
23 19 of 22
993 F.2d 1387, *1401; 1993 U.S. App. LEXIS 10163, **48

terms of the FLSA, this means the state "employs" supply of belt buckles produced by cheap inmate labor
them. See 29 U.S.C. 203. inevitably undercuts the bargaining power of the free
workers Congress designed the FLSA to protect. In
Not just the text of the statute, but also Congress' goals other words, the absence of a level playing field
in enacting the FLSA weigh heavily on the side of between prison and private sector belt-buckle producers
applying it to inmates. As the majority acknowledges, will "spread and perpetuate" unemployment and
Congress' primary goal was to eliminate substandard substandard labor conditions among workers in the
labor conditions throughout the nation. See Powell v. private sector. 2 The reality of this competition is
United States Cartridge Co., 339 U.S. 497, 509-10, 94 illustrated in the experience of an Arizona steel
L. Ed. 1017, 70 S. Ct. 755 (1950). Unlike the majority, manufacturer with unfair competition from ARCOR.
however, Congress specifically recognized that ARCOR submitted a bid in the private steel construction
substandard wages for any group of workers threaten market for $ 30,000 [**51] less than his $ 78,900 price.
the standard of living of others. Congress declared that The manufacturer complained that ARCOR should not
"be competing against private business on private
the existence . . . of labor conditions detrimental to the projects." He asked, "Where can I get guys to work for
maintenance of the minimum standard of living me at 50 cents an hour?"
necessary for health, efficiency, and general well-being
of workers (1) causes commerce [**49] and the The Supreme Court has expressly recognized
channels and instrumentalities of commerce to be used Congress' concern with the harmful effects [**52] of
to spread and perpetuate such labor conditions among cheap labor. In Powell v. United States Cartridge Co.,
the workers of the several States; . . . [and] (3) 339 U.S. at 509 n.12, the Court observed that "one
constitutes an unfair method of competition in major means of spreading substandard labor conditions
commerce. was recognized to be through the lowering of prices for
goods produced under substandard conditions . . . ."
29 U.S.C. 202(a) (emphasis added). In other words, Noting the "bold and sweeping terms" of the FLSA, id. at
Congress understood that as part and parcel of its 516, the Supreme Court refused to exempt employees
attempt to assure a minimum wage for all workers, it of a federal government contractor from the FLSA. The
must eliminate from the channels of commerce goods majority today does not heed the Supreme Court's
produced at a subminimum wage. 1 constant refrain that the FLSA is designed to prevent
the "distribution of goods produced under substandard
[**50] The congressional focus on unfair competition
labor conditions, which competition is injurious to the
from cheap labor comports with common sense
commerce. . . ." United States v. Darby, 312 U.S. 100,
economics. Richard Berry and his fellow prison workers
115, 85 L. Ed. 609, 61 S. Ct. 451 (1941). See also
produce belt buckles that may be sold at prices that put
Citicorp Industrial Credit, Inc. v. Brock, 483 U.S. 27, 37,
downward pressure on prices charged by other
97 L. Ed. 2d 23, 107 S. Ct. 2694 (1987); Tony & Susan
producers of belt buckles, producers who must pay their
Alamo Foundation v. Secretary of Labor, 471 U.S. 290,
workers at least $ 4.25 an hour. To compete, such
299, 85 L. Ed. 2d 278, 105 S. Ct. 1953 (1985); Maryland
producers must cut costs - by lowering wages to the
v. Wirtz, 392 U.S. 183, 189, 20 L. Ed. 2d 1020, 88 S. Ct.
minimum if they are [*1402] not already there, by
2017 (1968).
reducing other employee benefits, or by laying off
workers. And because the elasticity of the demand for
belt buckles is intrinsically limited, an increase in the 2 The United States has even protested the use of prison labor
in goods produced outside our borders for export to our
country on the ground that those cheaply-produced goods
1I do not, as the majority claims, say that Congress' concern deny competing United States industries a "level playing field."
with unfair competition "controls" whether a person is an FLSA Acting Commissioner Outlines Strategy for Implementing
employee. Opinion at 4327, n.14. What I do say is that Administration's Goals, BNA Int'l Trade Daily, Mar. 4, 1993;
Congress' concern with unfair competition is an important see also Customs to Block Tea, Socks Allegedly Made by
factor that should be considered in interpreting the statute. Chinese Forced Labor, BNA Int'l Trade Daily, July 13, 1992. In
The question is not whether unfair competition is "an element 1992, the United States and China signed a memorandum of
of an action under the FLSA" (id.); of course it's not. The understanding that bans Chinese prison-made goods from
question is whether Congress' concern with the harmful effect being imported into the United States. U.S., China Sign
that cheap labor has on the living standards of all workers Understanding Prohibiting Prison Labor Exports, BNA Int'l
should inform our interpretation of the statute. Trade Daily, Aug. 10, 1992.
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 21 ofPage
23 20 of 22
993 F.2d 1387, *1402; 1993 U.S. App. LEXIS 10163, **52

The majority briefly acknowledges that "the fact that certain segments of the population required federal
prison-made goods are sold in interstate compulsory legislation to prevent private contracts on
commerce [**53] implicates congressional concern with their part which endangered national health and
unfair competition." Opinion at 4326. Yet enigmatically, efficiency and as a result the free movement of goods in
and in the very next breath, the majority shrugs off interstate commerce.
Congress' concern, declaring that
Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 706-07,
nothing in the FLSA indicates that that fact alone should 89 L. Ed. 1296, 65 S. Ct. 895 (1945) (emphasis added).
convert the relationship between prison and prisoner to The majority seizes upon the prisoner's lack of
one of employer-employee such that prisoners working bargaining power as evidence that he is not an
on a program structured by the prison are entitled to a employee of the state. But it is exactly the worker who
minimum wage. lacks bargaining power that the FLSA seeks to reach,
for this is the worker who is most likely to be working for
Id. (footnote omitted). The majority's argument has substandard wages and thereby "endangering national
several flaws, not the least of which is that it reads like health and efficiency." Id. Congress understood that
ipse dixit rather than analysis. Although the FLSA says allowing any group of workers to make "private
nothing about the relationship between prisons and contracts" to work below the minimum wage tends to
prisoners, the Act's over-arching concern with unfair depress the wages or threaten the standard of living of
competition from cheap labor weighs in favor of other workers in competing industries. The fact that a
interpreting the FLSA as covering prison workers who prisoner may lack the choice not to work does [**56]
compete with workers in the private sector. To divine a not reduce the unfair competitive effect of his work
contrary congressional intent from the FLSA's failure to product when it enters the channels of commerce.
mention prison labor explicitly is to turn the construction
of the FLSA on its head. Courts have consistently The majority's premise - that the relationship between
presumed that workers are covered by the Act unless prison and prisoner is somehow inconsistent with FLSA
explicitly excluded; the majority presumes that prison coverage - is equally peculiar. On the ground that a
workers are not covered unless explicitly included. hard-time inmate's labor belongs to the institution, the
[**54] See, e.g., Arnold v. Ben Kanowsky, Inc., 361 majority holds that prisoners are not employees under
U.S. 388, 391, 4 L. Ed. 2d 393, 80 S. Ct. 453 (1960). 3 the FLSA. Opinion at 4324. The majority provides no
analysis explaining why the sterile concept of "belonging
[*1403] The majority's view that Congress apparently to the institution" should be the test of "economic
had little concern with the injurious effect of cheap reality." See Goldberg v. Whitaker House Cooperative,
prison labor on competition is inexplicable. The fact that Inc., 366 U.S. 28, 33, 6 L. Ed. 2d 100, 81 S. Ct. 933
prisoners are forced to work is irrelevant because the (1961) ("'economic reality' rather than 'technical
unfair competitive effect is the same regardless whether concepts'" determines whether there is an employment
the worker is forced to work or free to work. Indeed, the relationship under the FLSA). The economic reality is
less bargaining power workers have, the greater the that Richard Berry and his fellow plaintiffs work. Their
need to apply the [**55] FLSA to protect them and labor produces goods and services that are sold in the
those who compete against them. As the Supreme channels of commerce. And ARCOR pays them for their
Court has explained, the FLSA was passed in efforts. Common sense tells us this relationship is both
penological and pecuniary. Cf. opinion at 4322. The
recognition of the fact that due to the unequal majority fixates on whether the prisoners have a
bargaining power as between employer and employee, contractual right to bargain for their labor. This technical
legal [**57] concept, unrelated to Congress' design in
the FLSA, diverts the analysis from the economic reality
3 The traditional approach is compelled by the structure of the of this case.
Act, which first states in broad terms at section 206 that
employees must be paid the minimum wage, and then offers While the majority purports to reject Judge Trott's view
at section 213 certain exceptions to that rule - exceptions we that prisoners are categorically excluded from the FLSA,
must construe narrowly. See Arnold, 361 U.S. at 392. Section see opinion at 4317, it offers no principled basis for
213 makes no exception for prison workers. The majority distinguishing prisoners who are covered by the FLSA
recognizes this fact, see opinion at 4317, but concludes from those who are not. The majority's holding thus
nonetheless that the FLSA does not apply to Berry and his "encourages unnecessary litigation and invites
fellow prison workers.
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 22 ofPage
23 21 of 22
993 F.2d 1387, *1403; 1993 U.S. App. LEXIS 10163, **57

confusion in an area of the law that should be quite the exclusion of the FLSA, the majority ignores Powell v.
clear." Harker v. State Use Industries, 990 F.2d 131 (4th United States Cartridge Co., 339 U.S. 497, 94 L. Ed.
Cir. 1993). The majority says, "While we do not believe 1017, 70 S. Ct. 755 (1950). In Powell, the Court
that prisoners are categorically excluded from the FLSA, considered, and rejected, a similar argument that
we hold that the inmates in this case, who worked for Congress intended the Walsh-Healey Act to regulate the
programs structured by the prison pursuant to the wages of the employees of government contractors, to
state's requirement that prisoners work at hard labor, the exclusion of the FLSA. Like Ashurst-Sumners,
are not 'employees' of the state within the meaning of Walsh-Healey contains a prevailing wage requirement,
the FLSA." Opinion at 4311. First, the majority restricts but the Supreme Court rejected an argument that
its FLSA exemption to prisoners who are forced to work. Congress intended the FLSA and Walsh-Healey to be
But, at least in Arizona, this restriction means little mutually exclusive.
because the Department of Corrections may require all
able-bodied prisoners to work at hard labor. Ariz. Rev. Like the Ashurst-Sumners Act, the Walsh-Healey [**60]
Stat. 31-251(A). Second, [**58] the exemption is Act, which was also passed shortly before the FLSA,
restricted to prisoners who work under "prison- regulates the wages of a narrowly defined class of
structured" programs. However, "prison-structured" is so workers. In comparing Walsh-Healey and the FLSA, the
lacking in definition that it has no meaning as a limiting Court said:
factor. Since, as the majority recognizes, prison
Language [in the FLSA] discloses a congressional
authorities exercise virtually total control over prisoners'
awareness that the coverage of the Fair Labor
activities, including their work, opinion at 4321, any work
Standards Act overlaps that of other federal legislation
program using inmate labor is presumably "prison-
affecting labor standards. . . .
structured." Furthermore, the majority points to nothing
in the FLSA or its legislative history which would justify Despite evidence that the two statutes define
an exception that distinguishes between prisoners overlapping areas, respondents contend that they
working [*1404] in "prison-structured" programs from should be construed as being mutually exclusive. There
prisoners working in "non-prison structured" has been no presentation of instances, however, where
arrangements. Thus, the standards limiting the compliance with one Act makes it impossible to comply
exception the majority writes into the FLSA are both with the other. There has been no demonstration of the
amorphous and ad hoc. impossibility of determining, in each instance, the
respective wage requirements under each Act and then
The majority's announcement of a previously applying the higher requirement as satisfying both. . . .
undiscovered exemption to the FLSA conforms with
neither the text nor the purpose of the statute. In In some, and probably most, instances, the "prevailing
exempting the prisoners, the majority does what the minimum wages" required by the Walsh-Healey Act
Supreme Court has previously refused to do: namely, were more advantageous to employees than the
"restrict the Act not only arbitrarily but also inconsistently minimum wages prescribed by the Fair Labor Standards
with its broad purposes." Powell, 339 U.S. at 515. Act. . . . On the other hand, the remedial procedure
under the later Act was generally more advantageous to
II employees than the procedure under the earlier Act.

The majority attempts to [**59] buttress its cramped We conclude [**61] that the Acts are not mutually
reading of the FLSA by arguing that Congress could not exclusive. . . . We find the Acts to be mutually
have intended the FLSA to cover prison labor because supplementary.
Congress' "concern with unfair competition on account
of prison-made goods had been dealt with in the Powell, 339 U.S. at 518-20 (footnote omitted).
Ashurst-Sumners Act." Opinion at 4328. Ashurst-
Sumners permits goods produced in pilot prison This analysis in Powell applies with equal force here.
programs to be sold in interstate commerce provided The end result should be the same: Ashurst-Sumners
prisoners are paid prevailing wages, less appropriate and the FLSA are not mutually exclusive; they are
deductions. See 18 U.S.C. 1761(c). mutually supplementary. 4

In accepting Arizona's argument that Congress intended


Ashurst-Sumners to regulate the wages of prisoners to
4 The majority gives three reasons for disagreeing with my
Case 2:17-cv-04271-MMB Document 1-10 Filed 09/26/17 Page 23 ofPage
23 22 of 22
993 F.2d 1387, *1404; 1993 U.S. App. LEXIS 10163, **61

[**62] [*1405] The majority's reliance on Ashurst- [**64] CONCLUSION


Sumners creates an internal inconsistency in the
opinion. If Congress intended Ashurst-Sumners and the The majority's analysis seems to boil down to the
FLSA to be mutually exclusive in regulating prison labor, proposition that as long as Arizona law forces prisoners
as the majority holds, then all prison labor would be to work, the prisoners do not have to be paid. I simply
exempt from the FLSA. Yet the majority rejects this fail to see the logical connection between the fact that
view. See opinion at 4311, 4317. Since the majority the prisoners are forced to work and the question
rejects the idea that the FLSA categorically excludes all whether the FLSA applies. I see no reason to allow
prisoners, I fail to see how it can at the same time hold prison industries to compete unfairly in the marketplace
that the FLSA and Ashurst-Sumners are mutually by selling goods made by cheap inmate labor because
exclusive. some judges feel that prisoners should not be paid the
minimum wage for work they are required to do. Neither
In a final attempt to impute its own intent to the a plain reading of the Fair Labor Standards Act, nor a
Congress, the majority says that Congress must have faithful adherence to its goal of maintaining a minimum
intended to exempt these prisoners from the FLSA standard of living for workers generally, justifies such a
because Congress would not have wanted to jeopardize result.
prison labor programs. See opinion at 4329. Yet the
majority fails to give any clue why possible
congressional concerns about jeopardizing prison labor End of Document
programs should trump Congress' clearly expressed
intent that the FLSA be used as a shield to protect
workers from the evils attending the sale of goods
produced by cheap labor. The majority's willingness to
sacrifice the wages of free labor in order to deny wages
to inmates working in prison labor programs [**63] is
not grounded in the text or legislative history of either
Ashurst-Sumners or the FLSA. 5

argument that the FLSA and Ashurst-Sumners are mutually


supplementary, just as the Supreme Court in Powell found
Walsh-Healey and the FLSA to be. See opinion at 4328, n.18.
None of the majority's reasons is responsive to my argument.

(1) The majority's first reason - that Walsh-Healey applies to


"all persons employed" on government contracts, whereas the
FLSA does not apply to these prisoners because they are not
"'employees' under the FLSA" (id.) - is circular. It assumes the
answer to the very question of statutory interpretation we must
decide.

(2) The majority's second reason - that Walsh-Healey and


Ashurst-Sumners are mutually exclusive - is a red herring. The
issue is not whether Ashurst-Sumners and Walsh-Healey are
mutually exclusive, but whether Ashurst-Sumners and the
payments does not mean that Congress intended to prohibit a
FLSA are.
state from taking deductions from a prisoners' earnings to
(3) Finally, applying the FLSA to prisoners would not, as the cover these items. Indeed, the State of Arizona already
majority claims, render Ashurst-Sumners superfluous any provides for such payments whenever a prisoner receives at
more than applying the FLSA to employees of government least the minimum wage. See Ariz. Rev. Stat. 31-254(E). It is
contractors makes Walsh-Healey superfluous. inconceivable that Congress would make a state pay prisoners
the minimum wage plus room and board, or prohibit a state
5 Nor,I would add, is it grounded in reality. The majority's from requiring prisoners to make payments to their victims out
concern that the FLSA does not expressly allow states to of their earnings. In fact, the statute recognizes that in certain
garnish a portion of prisoners' wages to pay the state for room, circumstances a portion of a worker's wages may come in the
board, and victim compensation is misplaced. See opinion at form of employer-provided board and lodging. See 29 U.S.C.
4329. Just because the FLSA does not provide for such 203(m).
Case 2:17-cv-04271-MMB Document 1-11 Filed 09/26/17 Page 1 of 9

Exhibit J
Case 2:17-cv-04271-MMB Document 1-11 Filed 09/26/17 Page 2 of 9

Caution
As of: September 22, 2017 8:14 PM Z

Tourscher v. McCullough
United States Court of Appeals for the Third Circuit
April 5, 1999, Argued ; July 12, 1999, Filed
NO. 97-3671, NO. 98-3499

Reporter
184 F.3d 236 *; 1999 U.S. App. LEXIS 15549 **; 138 Lab. Cas. (CCH) P33,917
involuntary servitude pursuant to U.S. Const. amend.
MARK D. TOURSCHER, Appellant v. JOHN
XIII 1, were violated, finding that he was a duly
MCCULLOUGH; KATHY EMIL; COMMISSIONER
convicted prisoner from the date of his conviction until
HORN; JAY WHITESEL; MARK D. TOURSCHER,
the trial court regained jurisdiction of his case on
Appellant v. MARTIN HORN, SECRETARY OF THE
remand and during that period could be compelled to
PA. DEPT. OF CORRECTIONS; JOHN
work in the prison facility. The court vacated that portion
MCCULLOUGH, SUPERINTENDENT
of the dismissal concerning appellant's status while he
was a pretrial detainee, finding that the record did not
Prior History: [**1] ON APPEAL FROM THE UNITED
include enough evidence to establish a violation of
STATES DISTRICT COURT FOR THE WESTERN
appellant's rights. The court affirmed the dismissal of
DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 97-cv-
appellant's complaint concerning denial of access to the
00223J), (D.C. Civil No. 98-cv-00176J). District Judge:
The Honorable D. Brooks Smith. courts while incarcerated, finding he failed to plead facts
demonstrating how the work performed denied him
Disposition: Affirmed in part and vacated in part. meaningful access to the courts. Finally, the court
concluded that the Fair Labor Standards Act, 29
U.S.C.S. 206(a), pertaining to minimum wages did not
Core Terms apply to prisoners or pretrial detainees, so appellant
prison, pretrial detainee, prison official, minimum wage, was not entitled to minimum wage.
cafeteria, district court, allowance of appeal, convicted
prisoner, second complaint, courts, first complaint, Outcome
supersedeas, involuntary servitude, recommendation, The court affirmed that portion of the dismissal finding
automatic, deprived, services, appeals, meaningful appellant prisoner was duly convicted from the date of
access, Amendments, convicted, alleges, vacate his conviction until the trial court reacquired jurisdiction
on remand. The court vacated that portion of the
dismissal pertaining to appellant's status as a pretrial
Case Summary detainee in order to obtain more evidence on the issues
and affirmed dismissal of the claims pertaining to denial
Procedural Posture of access to the courts and payment of minimum wage.
Appellant prisoner sought review of a decision from the
United States District Court for the Western District of LexisNexis Headnotes
Pennsylvania, dismissing, pursuant to 28 U.S.C.S.
1915(e)(2)(B), his two complaints filed against appellee
prison officials.
Civil Procedure > Dismissal > Involuntary
Overview Dismissals > Failure to State Claims

Appellant prisoner sought review of the dismissal of his Civil Procedure > Judgments > Pretrial
action against appellee prison officials for violation of Judgments > Judgment on Pleadings
several of his constitutional rights. The court affirmed
the dismissal of appellant's claim that his rights against Civil Procedure > Appeals > Appellate
Jurisdiction > Final Judgment Rule
Case 2:17-cv-04271-MMB Document 1-11 Filed 09/26/17 Page 3 of 9 Page 2 of 8
184 F.3d 236, *236; 1999 U.S. App. LEXIS 15549, **1

HN1[ ] Involuntary Dismissals, Failure to State


Claims
Criminal Law & Procedure > Postconviction
Proceedings > Stays of Judgments
In reviewing a case dismissed for failure to state a claim
upon which relief can be granted, the court must accept HN6[ ] Postconviction Proceedings, Stays of
as true the factual allegations in the complaint and all Judgments
reasonable inferences that can be drawn therefrom.

Pa. R. App. P. 1764 provides that Rule 1736(b) applies


to criminal matters not involving capital punishment.
Constitutional Law > Involuntary Servitude

HN2[ ] Constitutional Law, Involuntary Servitude


Criminal Law & Procedure > Postconviction
Proceedings > Stays of Judgments
Where a prisoner is incarcerated pursuant to a
presumptively valid judgment, the prohibition against HN7[ ] Postconviction Proceedings, Stays of
involuntary servitude found in U.S. Const. amend. XIII Judgments
is not implicated even though the conviction may be
subsequently reversed..
See Pa. R. App. P. 1736(b).

Criminal Law & Procedure > Postconviction


Proceedings > Stays of Judgments Criminal Law & Procedure > Postconviction
Proceedings > Stays of Judgments
HN3[ ] Postconviction Proceedings, Stays of
Judgments HN8[ ] Postconviction Proceedings, Stays of
Judgments

A duly convicted prisoner continues in that status until


his or her appeal becomes final even if it results in a See Pa. R. App. P. 1764.
reversal of the conviction.

Constitutional Law > ... > Fundamental


Constitutional Law > Involuntary Servitude Rights > Procedural Due Process > General
Overview
HN4[ ] Constitutional Law, Involuntary Servitude
Constitutional Law > Involuntary Servitude

See U.S. Const. amend. XIII 1. HN9[ ] Fundamental Rights, Procedural Due
Process

Criminal Law & Procedure > Postconviction Pretrial detainees may be required to perform general
Proceedings > Stays of Judgments housekeeping responsibilities consistently with the Due
Process Clause, U.S. Const. amend. XIV.
HN5[ ] Postconviction Proceedings, Stays of
Judgments

Civil Rights Law > Protection of Rights > Prisoner


Under Pa. R. App. P. 1736(b) the taking of an appeal Rights > Access to Courts
acts as an automatic supersedeas.
Case 2:17-cv-04271-MMB Document 1-11 Filed 09/26/17 Page 4 of 9 Page 3 of 8
184 F.3d 236, *236; 1999 U.S. App. LEXIS 15549, **1

Constitutional Law > ... > Fundamental HN13[ ] Scope & Coverage, Minimum Wage
Rights > Procedural Due Process > Scope of
Protection
Prisoners producing goods and services used by the
Criminal Law & Procedure > Postconviction prison are not considered employees under 29 U.S.C.S.
Proceedings > Imprisonment 206(a) of the Fair Labor Standards Act.

Constitutional Law > ... > Fundamental


Rights > Procedural Due Process > General
Business & Corporate Compliance > ... > Wage &
Overview
Hour Laws > Scope & Definitions > Minimum Wage
HN10[ ] Prisoner Rights, Access to Courts
HN14[ ] Scope & Coverage, Minimum Wage

The Due Process Clause, U.S. Const. amend. XIV,


The minimum wage requirements of 29 U.S.C.S.
prohibits prison officials from denying a prisoner
206(a) of the Fair Labor Standards Act do not apply to
meaningful access to the courts.
pretrial detainees.

Counsel: Stanley B. Edelstein (argued), Jacoby


Business & Corporate Compliance > ... > Wage & Donner, P.C., Philadelphia, PA, Attorney for Appellant.
Hour Laws > Scope & Definitions > Minimum Wage
Calvin R. Koons (argued), Senior Deputy Attorney
General, D. Michael Fisher, Attorney General, John G.
Labor & Employment Law > Employment
Knorr, III, Chief Deputy Attorney General, Office of
Relationships > At Will Employment > Definition of
Attorney General, Appellate Litigation Section,
Employees
Harrisburg, PA, Attorneys for Appellees.
HN11[ ] Scope & Coverage, Minimum Wage
Judges: Before: SLOVITER and ALITO, Circuit Judges,
and ALARCON, Senior Circuit Judge. *
According to 29 U.S.C.S. 206(a) of the Fair Labor
Opinion by: ARTHUR L. ALARCON
Standards Act (Act), minimum wage provisions apply
only to workers who are "employees" within the meaning
of the Act, and the term must be interpreted in light of Opinion
the economic reality of the relationship between the
parties.
[*238] OPINION OF THE COURT

ALARCON, Senior Circuit Judge:


Business & Corporate Compliance > ... > Wage &
Mark D. Tourscher ("Tourscher") appeals from the
Hour Laws > Scope & Definitions > Minimum Wage
district court's order of November 25, 1997 dismissing
HN12[ ] Scope & Coverage, Minimum Wage his pro se complaint ("first complaint") as frivolous under
28 U.S.C. 1915(e)(2)(B) and 1915A. He also appeals
from the August 31, 1998 order dismissing a
See 29 U.S.C.S. 206(a). second [**2] pro se complaint ("second complaint").
This court consolidated the two appeals.

In his first complaint, Tourscher alleged that he was


Business & Corporate Compliance > ... > Wage & deprived of rights by Pennsylvania Department of
Hour Laws > Scope & Definitions > Minimum Wage Corrections officials ("Prison Officials") that are

Criminal Law & Procedure > Postconviction


Proceedings > Imprisonment * Hon.
Arthur L. Alarcon, Senior Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Case 2:17-cv-04271-MMB Document 1-11 Filed 09/26/17 Page 5 of 9 Page 4 of 8
184 F.3d 236, *238; 1999 U.S. App. LEXIS 15549, **2

guaranteed under the Eighth, Thirteenth and Fourteenth motion was denied on October 21, 1996. The
Amendments because they compelled him to work in Commonwealth then filed a timely petition for allowance
the prison cafeteria while he was a pretrial detainee. In of appeal with the Pennsylvania Supreme Court on
his second complaint, he asserted that the Prison November 21, 1996. While the petition for allowance of
Officials deprived him of meaningful access to the appeal was pending, the Court of Common Pleas set
courts in violation of the Due Process Clause by bail for Tourscher at $ 25,000 on December 6, 1996.
compelling him to work in the prison cafeteria while he Tourscher remained in custody, however, because he
was preparing his appeal from his second state was unable to post bail.
conviction. In addition, Tourscher maintained in each
complaint that he is entitled to be compensated The Pennsylvania Supreme Court denied the petition for
pursuant to the minimum wage provisions of the Fair allowance of appeal on August 21, 1997. Tourscher was
Labor Standards Act ("FLSA"), 29 U.S.C. 206(a), for not excused from his work assignment in the prison
the work he was compelled to do in the prison cafeteria. cafeteria until September 18, 1997.

We conclude that Tourscher was a duly convicted Tourscher filed his first complaint pursuant to 42 U.S.C.
prisoner who could be compelled to work in the prison 1983 on July 27, 1997. He alleged that the Prison
cafeteria until the date the Court of Common Pleas Officials, in both their individual and official capacities,
regained jurisdiction following the Pennsylvania violated his right not to be compelled to work under the
Supreme Court's denial of the Commonwealth's petition Eighth, Thirteenth, and Fourteenth Amendments.
for [**3] allowance of appeal. Accordingly, we affirm in Tourscher also alleged [**5] that he should be paid the
part the dismissal of the first complaint. We vacate the minimum wage for his labor pursuant to the FLSA, 29
dismissal of that portion of the first complaint that U.S.C. 201-209. Tourscher prayed for compensatory
alleges he was compelled to work in violation of the damages, punitive damages, and declaratory relief. He
Thirteenth Amendment between September 4, 1997 did not request injunctive relief.
and September 18, 1997, and remand with instructions.
We also hold that the district court did not err in Tourscher alleged that "the defendants have been
dismissing the second complaint because Tourscher forcing the Plaintiff to involuntary servitude, and
has failed to show that the work he was required to threatening to lock him up in the hole if he did not contie
perform after his second conviction denied him [sic] to labor for the state." In documents filed with the
meaningful access to the courts. Additionally, we reject district court, Tourscher asserted that he was required
Tourscher's contention that pretrial detainees and to work in the prison cafeteria, at a wage of 22 cents per
convicted prisoners are covered by the FLSA minimum hour. He further stated that he was paid approximately $
wage section for services performed in intra-prison 15 per month. At a wage of 22 cents per hour,
work. Tourscher worked approximately 69 hours per month or
less than 17 hours per week. (22 cents x 69 hours = $
I 15.18.)

In 1995, Tourscher was convicted of burglary, criminal In his report dated November 5, 1997, the magistrate
trespass, recklessly endangering another person, judge recommended that the district court consider
simple assault, and terroristic threats in the Court of either dismissing the complaint for failing to state facts
Common Pleas of Lackawana County, Pennsylvania. showing a federal constitutional violation, or on the
He was sentenced to serve three and one-half years to basis that the Prison Officials are immune because the
twenty-two years. While his appeal from his first law regarding whether a pretrial detainee can be
conviction was pending, the Prison Officials ordered compelled to work in a prison cafeteria was "not so
Tourscher [*239] to work in the prison cafeteria or face clearly established that defendants [**6] could be
administrative misconduct charges. considered to know that their conduct is unlawful." On
November 25, 1997, the district court adopted the report
On August 23, 1996, the [**4] Pennsylvania Superior and recommendation of the magistrate judge as its
Court vacated his first conviction and remanded the opinion and dismissed the complaint pursuant to 28
case for a new trial. See Commonwealth v. Tourscher, U.S.C. 1915(e)(2)(B), without indicating whether it
453 Pa. Super. 1, 682 A.2d 1275 (Pa. Super. Ct. 1996). believed Tourscher had failed to state a claim, or that
the Prison Officials were immune.
The Commonwealth filed a motion for reargument in the
Pennsylvania Superior Court. The Commonwealth's Following the denial of the Commonwealth's petition for
Case 2:17-cv-04271-MMB Document 1-11 Filed 09/26/17 Page 6 of 9 Page 5 of 8
184 F.3d 236, *239; 1999 U.S. App. LEXIS 15549, **6

allowance of appeal, Tourscher was retried for the same Tourscher asserts that it is a violation of the Thirteenth
offenses. On March 13, 1998, he was found guilty of Amendment's prohibition against involuntary servitude
criminal trespass and sentenced to eleven and one-half to require a party not duly convicted of a crime to work
months to ten years. in a prison cafeteria. 1 This court has not previously
considered the question whether the Thirteenth
Tourscher filed his second complaint against the Prison Amendment precludes prison authorities from
Officials on July 27, 1998. In the second complaint, compelling a prisoner to work during the pendency of
Tourscher alleged that the Prison Officials had deprived his or her appeal from a conviction. Other circuits,
him of his rights under the Eighth, Thirteenth, and however, have held that a person sentenced to serve a
Fourteenth Amendments. His complaint also alleged, term of imprisonment can be required to work during the
inter alia, that the requirement that he perform intra- time his or her appeal is pending before [**9] a
prison work assignments interfered with his ability to reviewing court. See Stiltner v. Rhay, 322 F.2d 314, 315
prepare the appeal from his second criminal conviction. (9th Cir. 1963) ("There is no federally protected right of
He also claimed that he was entitled to be paid a state prisoner not to work while imprisoned after
minimum wages under the FLSA for the work he conviction, even though that conviction is being
performed in the prison cafeteria. Tourscher [**7] appealed."). See also Plaisance v. Phelps, 845 F.2d
prayed for compensatory damages, punitive damages, 107, 108 (5th Cir. 1988) ("The fact that appellant is
declaratory relief, and injunctive relief in his second appealing does not require the district court to assume
complaint. Tourscher failed to allege the number of that his conviction was other than duly obtained.");
hours he was required to work during the pendency of Omasta v. Wainwright, 696 F.2d 1304, 1305 (11th Cir.
his March 13, 1998 state court conviction and his in 1983) (holding that HN2[ ] "where a prisoner is
forma [*240] pauperis application did not set forth his incarcerated pursuant to a presumptively valid judgment
monthly income. . . . the thirteenth amendment's prohibition against
involuntary servitude is not implicated. . . . even though
The second complaint was also referred to a magistrate
the conviction may be subsequently reversed."). We
judge for a report and recommendation. The magistrate
agree with our sister circuits that HN3[ ] a duly
judge issued a recommendation that the complaint be
convicted prisoner continues in that status until his or
dismissed for "failure to state a claim," pursuant to 28
her appeal becomes final even if it results in a reversal
U.S.C. 1915(e)(2)(B), "relying on the Report and
of the conviction.
Recommendation" filed regarding the disposition of the
first complaint. The district court adopted the magistrate [**10] Tourscher contends that he ceased being a duly
judge's report and recommendation as its opinion and convicted prisoner after the Pennsylvania Superior
dismissed the action on August 31, 1998. Court reversed his original conviction on August 23,
1996. He maintains that he reverted to the status of a
We have jurisdiction over these consolidated appeals pretrial detainee on that date and could not be
pursuant to 28 U.S.C. 1291. Our review of the compelled to work during the pendency of the
dismissal of each action is plenary. See Gibbs v. Commonwealth's attempts to overturn the Pennsylvania
Roman, 116 F.3d 83, 85 (3d Cir. 1997); see also Superior Court's decision. To support this contention,
Jenkins v. Morton, 148 F.3d 257, 258 (3d Cir. 1998). Tourscher points out that on December 5, 1996, the
HN1[ ] "We must accept as true the factual allegations Court of Common Pleas granted his motion to post bail
in the [**8] complaint and all reasonable inferences that pending his retrial. The Prison Officials maintain that the
can be drawn therefrom." Nami v. Fauver , 82 F.3d 63, judgment of the Pennsylvania Superior Court did not
65 (3d Cir. 1996). We may affirm the district court on become effective until the [*241] Pennsylvania
any ground supported by the record. See Central Penn. Supreme Court's denial of the Commonwealth's petition
Teamsters Fund v. McCormick Dray Line, Inc., 85 F.3d for allowance of appeal became final on September 4,
1098, 1107 (3d Cir. 1996); see also Erickson v. United
States, 976 F.2d 1299, 1300-01 (9th Cir. 1992)
(affirming district court's judgment on the basis of 1 HN4[ ] Section 1 of the Thirteenth Amendment provides
qualified immunity without deciding whether plaintiff had
as follows:
established a constitutional violation, where district court
had reached constitutional issue). Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been
II duly convicted, shall exist within the United States, or any
place subject to their jurisdiction.
Case 2:17-cv-04271-MMB Document 1-11 Filed 09/26/17 Page 7 of 9 Page 6 of 8
184 F.3d 236, *241; 1999 U.S. App. LEXIS 15549, **10

1997. To resolve this dispute, we must decide when the Pennsylvania law, the filing of a petition [**12] for
judgment of the Pennsylvania Superior Court reversing allowance of appeal by the Commonwealth stayed the
Tourscher's original conviction became effective and effective date of the judgment of the Pennsylvania
restored Tourscher to the status of a pretrial detainee. Superior Court. The Commonwealth's petition for
allowance of appeal was not acted upon by the
The parties have not cited any authority to us that Pennsylvania Supreme Court until August 21, 1997.
defines "duly convicted," as that term is used in the Pursuant to Rule 2572(b)(2) of the Pennsylvania Rules
Thirteenth Amendment. We are persuaded that, in of Appellate Procedure, "the time for the remand of
determining whether a person incarcerated under Record" from an order of the Pennsylvania Supreme
state [**11] law is a "duly convicted" prisoner, we must Court is 14 days. Under this rule the record should have
examine the state's laws regarding the effective date of been remanded on or before September 4, 1997.
the judgments of its courts. HN5[ ] Under Rule 1736(b) Accordingly, on that date he reverted to the status of a
of the Pennsylvania Rules of Appellate Procedure, the pretrial detainee.
taking of an appeal acts as an automatic supersedeas. 2
In Elizabeth Forward School District of Pennsylvania Tourscher, in his opening brief, "concedes that the
Labor Relations Board, 149 Pa. Commw. 235, 613 A.2d Commonwealth's attempt to appeal the Superior Court's
68 (1992), the court noted that the term "appeal," as order may have kept that order from becoming final."
used in Rule 1736(b), includes petitions "under any Appellant's Opening Brief at 18. He argues, however,
other provision of law." 149 Pa. Commw. at 240, 613 that "technical notions of finality must bow to the United
A.2d at 70. The court held in Elizabeth that a petition for States Constitution . . . ." Id. Tourscher fails, however, to
the allowance of an appeal filed by the Commonwealth cite any authority to support the proposition that the
acted as an automatic supersedeas. 3 [**13] See id. A Thirteenth Amendment requires us to hold that the
later case, relying on Elizabeth, reached the same decision of an intermediate court reversing a conviction
result. See Public Advocate v. Philadelphia Gas takes immediate effect, notwithstanding the fact that the
Commission , 166 Pa. Commw. 41, 45, 646 A.2d 19, 21 judgment is not final under state law until its highest
(1994). Although, as Tourscher argues, Elizabeth and court has acted upon a prosecutor's [**14] petition for
Public Advocate concern civil matters, HN6[ ] Rule review of an intermediate court's [*242] adverse
1764 of the Pennsylvania Rules of Appellate Procedure judgment. Tourscher was a duly convicted prisoner until
provides that Rule 1736(b) applies to criminal matters the automatic stay of the Pennsylvania Superior Court's
not involving capital punishment. 4 Thus, under judgment expired on September 4, 1977. The
requirement that he work in the prison cafeteria prior to
September 4, 1997 did not violate the Thirteenth
2 HN7[ ] Rule 1736(b) reads in relevant part: Amendment.
Supersedeas automatic. Unless otherwise ordered pursuant to III
this chapter the taking of an appeal by any party specified in
Subdivision (a) [including the Commonwealth or any officer It appears that Tourscher's status was equivalent to that
thereof, acting in his official capacity] of this rule shall operate of a pretrial detainee in the period between September
as a supersedeas in favor of such party. 4, 1997 and September 18, 1997. This does not
3 Although not defined in the Pennsylvania Rules, the term necessarily mean that Tourscher could not be
"supersedeas" is defined as follows in Black's Law Dictionary: compelled to perform some service in the prison. In
"In modern times the term is often used synonymously with a Hause v. Vaught, 993 F.2d 1079 (4th Cir. 1993), and
"stay of proceedings," and is employed to designate the effect Bijeol v. Nelson, 579 F.2d 423 (7th Cir. 1978) (per
of an act or proceeding which of itself suspends the curiam), the HN9[ ] courts held that pretrial detainees
enforcement of a judgment." Black's Law Dictionary 1437-38 may be required to perform "general housekeeping
(6th ed. 1990).
responsibilities" consistently with the Due Process
4 The full text of HN8[ ] Rule 1764 reads: Clause.

Other Stays in Criminal Matters Because the District Court dismissed Tourscher's
Except as otherwise prescribed by the Pennsylvania Rules of complaint before filing and service, the nature of the
Criminal Procedure, Rule 1731 (automatic supersedeas of services that Tourscher was required to perform during
orders for the payment of money) et seq. shall be applicable to
criminal or quasi-criminal matters or orders relating thereto through Rule 1763 (vacation of supersedeas on affirmance of
which are not within the scope of Rule 1761 (capital cases) conviction). Pa. R.A.P. 1764.
Case 2:17-cv-04271-MMB Document 1-11 Filed 09/26/17 Page 8 of 9 Page 7 of 8
184 F.3d 236, *242; 1999 U.S. App. LEXIS 15549, **14

that period and the amount of time they took is not on HN11[ ]
record. Such information is necessary before a court
can determine whether the prison officials [**15] The minimum wage provisions of the FLSA, however,
deprived him of this Thirteenth Amendment right to be apply only to workers who are [**17] "employees" within
free from involuntary servitude or his rights under the the meaning of the Act. See 29 U.S.C. 206(a). 6 This
Due Process Clause. Indeed, the defendants have not [*243] term must be interpreted in light of the
even had the opportunity to file an answer. "economic reality" of the relationship between the
parties. Goldberg v. Whitaker House Co-op., Inc., 366
Therefore, we must vacate the dismissal of that portion U.S. 28, 33, 6 L. Ed. 2d 100, 81 S. Ct. 933 (1961).
of the complaint that alleges that Tourscher was
compelled to work between September 4, 1997 and Each circuit that has addressed the question has
September 18, 1997. We will remand with instructions concluded that HN13[ ] prisoners producing goods and
that the District Court direct that Tourscher's complaint services used by the prison should not be considered
be filed and let the case proceed thereafter. employees under the FLSA. See Gambetta v. Prison
Rehabilitative Industries, 112 F.3d 1119, 1124-25 (11th
IV Cir. 1997); Danneskjold v. Hausrath, 82 F.3d 37, 43 (2d
Cir. 1996); Reimonenq v. Foti, 72 F.3d 472, 475 n.3 (5th
In his second complaint, Tourscher alleged that the
Cir. 1996); [**18] Henthorn v. Department of Navy, 308
Prison Officials deprived him of his right to meaningful
U.S. App. D.C. 36, 29 F.3d 682, 684-87 (D.C.Cir. 1994);
access to the Pennsylvania courts by compelling him to
McMaster v. Minnesota, 30 F.3d 976, 980 (8th Cir.
work in the prison cafeteria while his appeal from his
1994); Hale v. Arizona, 993 F.2d 1387, 1392-98 (9th Cir.
second conviction was pending in state court. In Lewis
1993) (en banc); Franks v. Oklahoma State Indus., 7
v. Casey, 518 U.S. 343, 135 L. Ed. 2d 606, 116 S. Ct.
F.3d 971, 972 (10th Cir. 1993); Harker v. State Use
2174 (1996), the Court held HN10[ ] that the Due
Indus., 990 F.2d 131, 133 (4th Cir. 1993); Miller v.
Process Clause prohibits prison officials from denying a
Dukakis, 961 F.2d 7, 8-9 (1st Cir. 1992); Vanskike v.
prisoner meaningful access to the courts. See id. at
Peters, 974 F.2d 806, 809-10 (7th Cir. 1992); but cf.
350-55.
Watson v. Graves, 909 F.2d 1549, 1554-55 (5th Cir.
1990) (holding the FLSA applicable where the prisoners
Tourscher failed to allege any facts that demonstrate
worked for an outside construction company in
that the number of hours he was required to work
competition with other private employers and where this
denied him sufficient time to prepare an appeal
competition tended to undermine compliance with the
to [**16] the Pennsylvania courts from his second
FLSA).
criminal conviction. To state a viable claim of the denial
of meaningful access to the courts, Tourscher was In Danneskjold, the Second Circuit reasoned as follows:
required to plead facts demonstrating that the work he
performed in the prison cafeteria interfered with his The relationship is not one of employment;
ability to prosecute his appeal. See id. at 351 (an inmate prisoners are taken out of the national economy;
must demonstrate actual injury, i.e., that state actors prison work is often designed to train and
hindered his efforts to pursue a legal claim.) rehabilitate; prisoners' living standards are
Accordingly, we must reject Tourscher's due process determined by what the prison provides; and most
claim. such labor does not compete with [**19] private
employers. . . .
V As a result, no Court of Appeals has ever
questioned the power of a correctional institution to
Tourscher asserts that each of his complaints alleged
valid claims under the Fair Labor Standards Act, 29
U.S.C. 201-209. He argues that pretrial detainees
6 HN12[ ] Section 206(a) reads in relevant part:
and convicted prisoners must be paid the minimum
wage pursuant to 206 of the FLSA. 5 Every employer shall pay to each of his employees who
in any workweek is engaged in commerce or in the
production of goods for commerce, or is employed in an
5 Theminimum wage for the period specified in Tourscher's enterprise engaged in commerce or in the production of
complaints ranged from $ 4.25 per hour to $ 5.15 per hour. goods for commerce, wages at the following rates . . . .
See 29 U.S.C. 206(a)(1). (emphasis added).
Case 2:17-cv-04271-MMB Document 1-11 Filed 09/26/17 Page 9 of 9 Page 8 of 8
184 F.3d 236, *243; 1999 U.S. App. LEXIS 15549, **19

compel inmates to perform services for the VI


institution without paying the minimum wage.
Prisoners may thus be ordered to cook, staff the After reviewing the record and the applicable law, we
library, perform janitorial services, work in the conclude that Tourscher's remaining contentions are
laundry, or carry out numerous other tasks that devoid of merit.
serve various institutional missions of the prison,
Conclusion
such as recreation, care and maintenance of the
facility, or rehabilitation. Such work occupies We affirm the dismissal of that portion of the first
prisoners' time that might otherwise be filled by complaint that alleges that Tourscher was not a duly
mischief; it trains prisoners in the discipline and convicted prisoner after the reversal of his state
skills of work; and it is a method of seeing that conviction by the Pennsylvania Superior Court. We hold
prisoners bear a cost of their incarceration. that Tourscher was a duly convicted prisoner until the
automatic stay on the Pennsylvania Superior Court's
82 F.3d at 42-43. judgment expired on September 4, 1998, the date the
Court of Common Pleas regained jurisdiction following
We agree with our sister circuits that prisoners who
the Pennsylvania Supreme Court's denial of the
perform intra-prison work are not entitled to minimum
Commonwealth's petition for allowance of appeal. We
wages under the FLSA.
vacate the dismissal of that portion of the complaint that
Tourscher also claims that the minimum wage provision alleges that the Prison Officials deprived him of his right
of the FLSA should apply to the work he performed as a pretrial detainee not to be subjected to involuntary
while he was a pretrial detainee. The only circuit which servitude between September 4, 1997 and September
has examined this question held that the FLSA is 18, 1997, with instructions that the district court direct
inapplicable to pretrial detainees working for prison the clerk to file Tourscher's complaint and order that it
authorities since, like prisoners, they are not employees be served on the defendants, and, following appropriate
under [**20] the FLSA. See Villarreal v. Woodman, 113 pretrial proceedings, make a determination
F.3d 202, 206-07 (11th Cir. 1997). concerning [**22] the matter of the services Tourscher
performed and the number of hours he was compelled
The Eleventh Circuit reasoned as follows: to work during that period. We affirm the dismissal of
Tourscher's second complaint because he failed to
Focusing on the economic reality of the situation in its allege sufficient facts to demonstrate that he was denied
entirety, we conclude that [a pretrial detainee] is not an access to the courts. Finally, we hold that he is not
"employee" under the FLSA. The purpose of the FLSA entitled to be paid the minimum wage under the FLSA
is to protect the standard of living and general well- for work he performed as a pretrial detainee or as a duly
being of the American worker. Because the correctional convicted prisoner.
facility meets Villarreal's needs, his "standard of living"
is protected. In sum, "the more indicia of traditional,
free-market employment the relationship between the End of Document
prisoner and his putative 'employer' bears, the more
likely it is that the FLSA will govern the employment
relationship." Villarreal's situation does not bear any
indicia of traditional free-market employment
contemplated under the FLSA. Accordingly, we hold that
Villarreal and other [*244] pretrial detainees in similar
circumstances are not entitled to the protection of the
FLSA minimum wage requirement.

Id. at 207 (citations omitted).

We agree with this rationale. Tourscher's employment


bears no indicia of traditional free-market employment.
Therefore, we hold that HN14[ ] the minimum wage
requirements [**21] of the FLSA do not apply to
Tourscher or other similarly situated pretrial detainees.
Case 2:17-cv-04271-MMB Document 1-12 Filed 09/26/17 Page 1 of 5

Exhibit K
Are college athletes the same as prisoners? These judges seem to think so. - The Washing... Page 1 of 4
Case 2:17-cv-04271-MMB Document 1-12 Filed 09/26/17 Page 2 of 5

Colleges

Are college athletes the


same as prisoners?
These judges seem to
think so.

By Sally Jenkins Columnist January 5

The phrase student-athlete will be repeated with chanting monotony during college footballs national
championship week, so lets pause to consider that talcum-dull term. It would be nice to find a better
phrase, but what to replace it with? Scholarship athletes are uniquely hard to describe, somehow more
loaded with privileges and responsibilities than the average student-cheerleader or student-student. What
should we compare them to? Apprentices? This question was recently put to a panel of NCAA-friendly
federal judges, who after due consideration came up with their own startling comparison: prisoners.

Thats right. Prisoners.

The case is called Berger v. NCAA, and in it, some former track runners from Penn contended that athletes
put in enough work at universities to be entitled to minimum wage under the Fair Labor Standards Act. Its
one of a raft of cases seeking pay for college athletes, and it wouldnt stand out except for the obnoxious
grounds on which it has been summarily dismissed by a three-judge panel for the U.S. Court of Appeals for
the Seventh Circuit, the NCAAs home court. The majority opinion reasoned that college athletes have no
more right to ask whether they might be employees than inmates laboring in jails. A plea for a rehearing en
banc was rejected by the Seventh Circuit Wednesday night.

https://www.washingtonpost.com/sports/colleges/are-college-athletes-the-same-as-prisoner... 9/22/2017
Are college athletes the same as prisoners? These judges seem to think so. - The Washing... Page 2 of 4
Case 2:17-cv-04271-MMB Document 1-12 Filed 09/26/17 Page 3 of 5

Plaintiff attorney Paul McDonald summarized the result of the decision. Student athletes now join
prisoners as the only citizens who, as a matter of law, cannot be considered employees, he said.

Fortunately, this wont be the last of the issue. A similar case is going forward in California, brought by
former Southern Cal linebacker Lamar Dawson, claiming that Pacific-12 mens football and basketball
players constitute employees. Additionally, McDonald is considering a Supreme Court petition.

The arguments in Berger and Dawson may or may not be persuasive but surely they deserve at least to be
heard, as opposed to this preemptory clanging-shut of a cell door.

Personally, Im unconvinced that athletes should be directly paid by their universities. I believe they are well
recompensed through their scholarships, and if we want to give them more, we should enhance their
educations, while letting them earn what they can off the field from their likenesses and jersey sales. Also,
labor law doesnt strike me as the right tool for solving the yawning inequities and complexities of an NCAA
system that generates a half-billion dollars in football bowl payouts yet also supports myriad red-ink
nonrevenue sports. Still, I would like to hear a legal consideration of the murky labor relationship athletes
have to their campuses, which receive such enormous yield from their work.

That would seem an important and overdue exercise, just as it was an important and overdue exercise for
courts to ask whether companies were taking advantage of unpaid interns.

There would seem to be nothing wrong nothing at all with asking that question. This is all Berger
sought, a legitimate fleshing out of the issues, McDonald said.

Usually in Fair Labor Standards Act cases, there is a fact-intensive multipronged inquiry to determine if
someone has been unfairly used and is entitled to a minimum wage. In the case of interns, the Department
of Labor and a series of recent federal court decisions have spelled out the questions that should be used to
test whether an intern has performed wage-earning work. In a case called Glatt v. Fox Searchlight, involving
unpaid film interns, the Second Circuit spelled out the following specific test factors:

To what extent is their training similar to what they would receive in an educational setting? Does the
experience benefit the intern? Does it provide immediate advantage to the employer? Does their work
displace regular employees? Does the intern get academic credit for the experience? Is the experience tied to
coursework? Does it accommodate the academic calendar? And does it provide significant educational
benefit? Is there a clear understanding that there is no entitlement to cash compensation?

https://www.washingtonpost.com/sports/colleges/are-college-athletes-the-same-as-prisoner... 9/22/2017
Are college athletes the same as prisoners? These judges seem to think so. - The Washing... Page 3 of 4
Case 2:17-cv-04271-MMB Document 1-12 Filed 09/26/17 Page 4 of 5

These would seem to be exactly the sorts of specific questions we should be asking about athletes on
campus, especially ones who drive large revenues. We need to ask, Is this academic, or is this work?

But the judges were determined not to ask such questions in Berger. Instead, at both the district and circuit
levels, they threw the case out by using a single piece of case law, Vanskike v. Peters, involving convicts. In
Vanskike, an inmate at a state prison in Joliet, Ill., had asked for wages. The Seventh Circuit declined to
apply the test questions in that instance because asking who benefits from an inmates labor was
nonsensical and didnt capture the real relationship of prisoner to prison.

So, to be clear, the best way to capture the relationship of athletes to their campus is to view them as
detainees?

The Seventh Circuits contorted reasoning bears repeating. College athletes are similar to prisoners
economically because the revered tradition of amateurism in college spanning more than 100 years
defines the economic reality of the relationship between student-athletes and their schools, the court
wrote. As with inmates, asking any questions about who benefits from their work would fail to capture the
true nature of their relationship. In other words, amateurism is as confining and defining as jail.

Then the court went one step further and declared, Simply put, student-athletic play is not work, as least
as the term is used in the FLSA.

Now, those of us who might be inclined to agree with that statement would like to see it grounded in more
than an inmate case. But the Seventh Circuit shut down further discussion. No discovery or further
development of the record would be helpful, it wrote.

Actually, it would be helpful. It would be very, very helpful indeed.

The true nature of the athletes relationship to campus needs to be captured. Badly. For one thing, it has
changed dramatically over a century. A hundred years ago, coaches were unpaid volunteers. Now,
Alabamas Nick Saban earns almost $7 million a year and Michigans Jim Harbaugh $9 million, with
contractual bonuses for wins, and they determine the hours and activities of athletes more powerfully than
any employer. Athletes might be amateur, but they put in more hard labor than any work-study student
toiling in the college library or cafeteria for wages. Even the collegians manning the concessions in the
stadiums on game day make $7.25 an hour. McDonald likens the situation of college athletes to work-study
on steroids.

https://www.washingtonpost.com/sports/colleges/are-college-athletes-the-same-as-prisoner... 9/22/2017
Are college athletes the same as prisoners? These judges seem to think so. - The Washing... Page 4 of 4
Case 2:17-cv-04271-MMB Document 1-12 Filed 09/26/17 Page 5 of 5

College athletes should have an avenue to ask hard questions about their situation on campus. Are they
working unreasonable overtime hours that make it hard to progress to a degree? Is their experience
advancing or impeding their education?

The answer will not necessarily result in a slam-dunk ruling against the NCAA. It might actually favor the
status quo and demonstrate the real values of scholarship and the educational content of varsity sports. But
in the Berger case, well never know because the judges were apparently too alarmed even to ask the
questions.

Sally Jenkins is a sports columnist for The Washington Post. Follow @sallyjenx

https://www.washingtonpost.com/sports/colleges/are-college-athletes-the-same-as-prisoner... 9/22/2017