Minnesota Lawyer
The 8th U.S. Circuit Court of Appeals ruled April 26 that sexually dangerous civil detainees participating in a work program are not employees of the Minnesota Sex Offender Program and, thus, are not guaranteed minimum wage.
The ruling in David Leroy Gamble v. Minnesota State-Operated Services affirmed the ruling of the District Court.
The case arises from a voluntary Vocation Work program that sexually dangerous civil detainees in the Minnesota Sex Offender Program (MSOP) may participate in. Sexually dangerous civil detainees are individuals who have exhibited sexually dangerous behavior and have been civilly committed.
The MSOP is represented as part of the therapeutic treatment civilly committed sex offenders require, while simultaneously teaching work skills and habits. Workers do everything from inside and outside maintenance to sign manufacturing and craftwork for Minnesota State Industries. The work program operates at a net loss. Only one part of the program is profitable. In 2020, sales totaled $1.38 million but associated costs totaled $2.77 million.
Work that the detainees do also contributes to the cost of their care. They are paid $10 per hour. However, the state will withhold up to 50% of the wages to reduce costs that are associated with operating the MSOP. As a detainee works more hours, that individual can keep a greater percentage of the wages.
Under the Fair Labor Standards Act, employers are required to pay its employees a minimum wage of at least $7.25 per hour. Even though plaintiffs earn $10 hour, withholding of wages often drops them below $7.25. Appellants argued that this arrangement violated the FLSA, since they were taking home less than $7.25 per hour.
The case turned on the definition of “employee.” The district court agreed with defendants that plaintiffs were not employees under the FLSA. Plaintiffs then appealed.
In McMaster v. Minnesota, the 8th Circuit determined that inmates were not considered employees. Since the prisoners had not bargained for exchange of their labor for consideration, and because their basic needs were provided by the state, the court held that the FLSA did not apply. Although the case pertained to prisoners — which sexually dangerous civil detainees are not — other circuits, including the 7th (Sanders v. Hayden), have decided that sexually dangerous civil detainees are not state employees.
Kathryn Landrum, who represented appellees, attested at oral arguments that the question before the court was simple and had been asked and answered numerous times: Are civil detainees employees? Landrum acknowledged that, while the setting of civil detainees was different from a prison setting, it still was in an involuntary setting. “If it’s an involuntary custodial environment, [basic needs] are satisfied … [c]lients have a basic standard of living guaranteed to them as a matter of law.”
Charlie Alden, who represented appellants, acknowledged that while many circuits had ruled against the position appellants were taking, that was more a function of bad legal arguments than simply finding the correct position on the issue.
Originally, the appellants in this case were not represented by counsel.
“It is important to acknowledge that this case is the first in which any person civilly committed for sex offender treatment has been represented by an attorney. It’s the first case to survive a Rule 12 motion to dismiss,” Alden said at oral arguments.”[W]e have a lot of bad law that’s come about because people have represented themselves pro se.”
Alden argued that the arguments that appellants advanced were not considered, largely due to the offenses that led them to be civilly committed. “Even the nomenclature with which we refer to them — civilly committed sex offenders — that’s not what they are. They’re persons civilly committed to the state for treatment of sexual disorders,” Alden insisted at oral arguments.
The appellants argued that while their basic needs were met by the state, they claimed they had to purchase many items for themselves, including clothing, to perform their jobs.
As the appellants did not provide evidence that the state failed to provide many items the detainees needed — coupled with the fact that detainees could apply for cash assistance and medical insurance through the state — the court found that all of the detainees’ basic needs were met.
“[L]ike prisoners, the detainees have their basic needs met by the state,” the court wrote. “The detainees’ participation in the VWP is not for their economic gain but rather is part of their rehabilitation,” the court held. It upheld the finding of the District Court.
Alden, who represented appellants, commented to Minnesota Lawyer: “The civil rights of civilly committed sex offenders unfortunately continue to be subject to a narrow carve-out from the minimum wage requirements of the Fair Labor Standards Act.
“Persons involuntarily civilly committed to the very same institutions for any other sort of treatment, including treatment for developmental disabilities, chemical dependency, or as mentally ill and dangerous to themselves or the public, are recognized by the state, under the plain language of the FLSA, and by the U.S. Department of Labor as being entitled to the minimum wage based on the economic reality of their relationship with the state.
“The relationship of these plaintiffs is the same. The decision supports a distinction without a difference. We are considering an appeal.”
