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Case Law Is Shifting on Employee Status of Ice Detainees


People in civil immigration detention who participate in work programs have not been considered employees entitled to minimum wage, but two decisions in cases against a major detention operator concluding otherwise show how this legal landscape is evolving, attorneys said.


This evolution may be attributed in part to the fact that these courts are assessing the employer-employee relationship under state law as opposed to the Fair Labor Standards Act, said Caroline Donelan, a partner with management-side firm Blank Rome LLP.

"This has been a gray area for a long time," she said. "What courts are doing now is looking much more closely at the conditions, not only the conditions that the detainees are in but … what is the goal that these labor laws seek to achieve?"

States like California and Washington have enacted more worker-friendly laws with broader definitions of what it means to be an employee, she said.

"I think there's been a clearer distinction that these are not prisoners. These are people that are awaiting immigration proceedings, and they're working for for-profit companies," Donelan said.


Labor laws are meant not only to enshrine workers' rights, but also to protect against unfair competition, Donelan said.

"When you have a multibillion-dollar company who is paying people $1 a day to get the same amount of labor that other for-profit companies pay minimum wage for, that's not an even playing field," she said.

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"Case Law Is Shifting on Employee Status of Ice Detainees," by Daniela Porat was published in Law360 on April 15, 2022.