Thursday, May 24, 2012

Corrections Corporation of America Sued over Working Conditions

By Jenny Landreth

The Corrections Corporation of America (CCA) has been sued by six current and former employees. The employees, who were supervisors at the Marion Adjustment Center in St. Mary’s, Kentucky, assert that CCA forced them to work additional hours whilst denying them overtime.

Supervisors claim they are required to work additional hours, denied meals and breaks, and forced to participate in training on their days off.

The employees are seeking damages of an unspecified amount. They are also seeking an injunction which would require CCA to pay appropriate levels of compensation to any employees working in excess of 40 hours per week.

Their attorney, Tom Miller, has stated concerns that CCA has been cutting essential costs so as to increase its profit: “This is a for profit company…the way you maximize profit is to reduce expenses”

He also indicated that the lawsuit may also relate to employees of two other CCA-run prisons in the State of Kentucky, namely the Otter Creek Correctional Center in Wheelwright and the Lee Adjustment Center in Beattyville.

In response, CCA Spokesman Mike Machak stated: “Overall, we are committed to ensuring that our employees are fully compensated, and we strive to provide lasting career opportunities for those professionals who chose to work with our company.”

The Fair Labor Standards Act
The FLSA was enacted in 1938 in order to provide protection to private sector and government workers and sets several standards relating to record keeping, minimum wage, youth labor, and overtime pay. The Act States that non-exempt employees must be paid overtime, at the rate of at least time-and-a-half, when their working hours exceed 40 per week.

At present CCA claims that all supervisors and assistant supervisors can be categorised as exempt from overtime pay under the Fair Labor Standards Act (FLSA), as their job encompasses management duties.

However, the process of defining a post as exempt due to managerial responsibility is complex. Multiple criteria must be satisfied. Namely, the employer must regularly supervise two or more other employees and management must constitute the primary component of the position. They must also have some input into the employment status of fellow employees, for example with regard to hiring, promoting and dismissing.

Tom Miller, however, suggests that the work completed by prison supervisors does not constitute an exemption under the FLSA.

Previous Case Law
This is not the first time that CCA’s application of the FLSA has been challenged. A previous suit, settled in Kansas in 2009, bears strong resemblance to this case. Keith E. Barnwell et al. alleged that: “CCA violated the FLSA by failing to compensate correction officers, and pay overtime, to correction officers for work performed.”

Alleged violations included a failure to compensate workers for pre and post-shift work, briefings attendance or completion of paperwork.  A damages settlement was reached. Sealing of this settlement was overturned following a legal challenge by Prison Legal News.

“This is a for profit company…the way you maximize profit is to reduce expenses”
In private prisons, inmates are confined by a third (for profit) company that has entered into a contract with a government agency. Typically, that company is then paid, on a contractual basis, a daily or monthly rate per prisoner.

Critics of private prison provision highlight the inherent difficulty of reconciling drive for profit with quality of service - in order to generate profit, costs must be cut. They argue that cuts are made in the training of prison guards, with poor investment in career development programs, learning tools, and supervision. They also argue that cuts are made in the payment of staff.  It could be suggested that the above cases are illustrative of this.

In January 2012, the Sentencing Project published an extensive review, titled Too Good to be True: Private Prisons in America. This review concluded that:

“Private Prisons must make cuts in important high-cost areas, such as staff training and programing to create savings. The pressure that companies feel to maintain low overhead costs combined with less direct oversight are likely what led researchers at the University of Utah to conclude that ‘quality of service is not improved’ in private prisons.”
Jenny Landreth is a freelance writer from England who has written for a number of journals and textbooks on the issue of workers' rights.


  1. Anonymous25 May, 2012

    Posted a comment at FDL and wanted to make sure you saw this: In the wee hours of the night I was thinking about you. While my thoughts are not directly related to the FLSA, they are related to the CCA and a wealth of potential constitutional lawsuits.

    The CCA is performing a public function and is therefor subject to the 14th Amendment.

    “Under state action doctrine, private parties outside of government do not have to comply with procedural or substantive due process under the Fourteenth Amendment. For example, the First Amendment does not apply to private schools because they are not part of state or local government.

    There are two exceptions to this rule for:

    public functions

    These exceptions hold that private corporations performing government functions, such as handling law enforcement in a small town, would be subject to the Fourteenth Amendment. Similarly, high school athletic associations dictating who may compete in high school programs have been held to be subject to the Fourteenth Amendment.”

    In other words, not only would the CCA have to comply with the FLSA, but the CCA could be held liable to any constitutional violations as they are performing a public function.

    One strategy in a class action lawsuits that can be employed to force a settlement or alter corporate behavior is to make it clear that a mass of lawsuits may bankrupt the company (Think of the BP gulf disaster, the [former] asbestos industry, or the Engle cigarette saga.)

    In other words: if the CCA has extensively violated the civil rights of employees and/or prisoners there could be a potential class action lawsuit hovering out there in the shadows right now that could potentially bankrupt CCA.

    1. Hey - saw your comment on FDL; copying my reply to it, here:

      I agree with pretty much all of your sentiment. Except that I know of only one jurisdiction that has specifically held that private prison companies perform an inherently governmental function (Florida).

      This speaks to an issue I’ve written about multiple times; the industry is still considered to be comprised of private entities performing a business, not a government function, legally speaking. Theoretically, yes you’re completely correct and I agree 100%. But because private companies run these facilities, they are not held to the same standards as the government.

      That doesn’t permit CCA or the GEO Group (or any other company or person for that matter) to violate the constitutional rights of any person. That’s why those rights are in the constitution.

      But, being private companies, they do not have to report on many of the criteria we would often use to judge government facilities, such as staffing ratios, incidents of violence, use of disciplinary measures, and delivery of many core services, except when expressly outlined in the contracts they sign with various governments. The companies are not bound by public records/FOIA/sunshine laws in any jurisdiction except Florida and Tennessee (coincidentally enough, the home states of the two big companies), which makes oversight by the general public, and holding the companies accountable for transgressions, incredibly difficult

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