A federal judge refused to dismiss a lawsuit challenging private prison company GEO Group’s “Voluntary Work Program,” which pays detained immigrants $1 per day for cooking, cleaning, doing laundry, and otherwise running the facility in which they are held. The December 6, 2017 order rejected GEO’s arguments that federal law preempts any attempt to force them to pay detainees the Washington state minimum wage of $11 per hour, and that immigrant detainees are not “employees” under Washington law.

The class action suit was brought by Chao Chen, a citizen of the People’s Republic of China who was detained by Immigration and Customs Enforcement (ICE) and held at the GEO-owned Northwest Detention Center (NDC) from October 2014 until February 2016. NDC is a 1,500 bed ICE facility which makes use of GEO’s Voluntary Work Program, a program that pays detainees $1 per day, and sometimes more and better food, to keep the facility running.

In a December 6, 2017 ruling, U.S. District Court Judge Robert Bryan weighed GEO’s arguments that the case should be dismissed. GEO first argued that federal law, which is the supreme law of the land, preempts any application of Washington state law to their use of detainee slave labor.

The court first considered whether express preemption applied. Express preemption “applies when Congress explicitly states its intent to preempt law in the language of a statute.” GEO argued that §1342a(h)(2) of the Immigration Reform and Control Act (IRCA) expressly preempted Washington’s state minimum wage provision. This section of the IRCA in question prevents state and local governments from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens.” Because it was a bridge too far to construe the application of a state’s minimum wage law as a “sanction,” the court found no express preemption.

The court next considered whether field preemption applied. Field preemption precludes states from “regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” GEO argued that “a hodgepodge of federal statutes,” read together, indicate that Congress intended to regulate the field of immigration detention generally, including detainee wages. The court did not agree, because GEO’s argument was essentially based on ICE agency authority, not Congressional intent to regulate the field. There was no field preemption.

The court also looked at whether conflict preemption or obstacle preemption applied. Conflict preemption exists “where it is impossible for a private party to comply with both state and federal requirements,” and obstacle preemption exists “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” GEO argued conflict preemption because the IRCA prohibits the hiring of aliens, but the Washington minimum wage law would require GEO to treat immigration detainees as “employees.” The court found this argument, as well as GEO’s obstacle preemption argument, premature at the motion to dismiss stage. The arguments relied on factual determinations that had not been made yet.

“[T]he conflict/obstacle preemption issues may become ripe at summary judgment or at trial, but at present factual issues abound that preclude a decision based on the pleadings, and before discovery,” wrote the court. “Defendant has not shown that the State minimum wage provision is conflict or obstacle preempted.”

Finally, the court weighed whether Chen failed to state a claim. GEO argued that because detainees are not “employees” under Washington law, it does not apply to them. In making this argument, GEO relied on an exception to the definition of “employee” in Washington law which excepts “[a]ny resident, inmate, or patient of a state, county, or municipal correctional, detention, treatment or rehabilitation institution[.]” The court found the obvious problem with this argument — nowhere in this exception are residents of federal facilities mentioned. As such, even though there was an argument that other courts have interpreted similar language to include federal detainees, the court found that a claim was stated.

The denial of GEO’s motion to dismiss means that Chen’s case will move on to the discovery phase, and potentially trial. The Seattle Times reported that a similar case brought by the Washington Attorney General against GEO has also survived the motion to dismiss stage, and is moving forward.

Case: Chen v. The GEO Group, Inc., United States District Court for the Western District of Washington, Case No. 3:17-cv-05769-RJB, ECF No. 28 (December 6, 2017)

Additional source: www.seattletimes.com

Originally published in Criminal Legal News on February 22, 2018.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).