Office of Legal Counsel for the Department of Justice have recently indicated that inmates are not federal employees within the meaning of the whistleblower provisions of 29 C.F.R. Part 24, his superiors in Washington, D.C. advised him that his office must decline to participate further in this case. On August 19, 1991, the Complainant submitted a brief on this issue.

    The threshold issue to be decided is whether the Complainant is an "employee" within the meaning of the TSCA or the CAA for the purpose of whistleblower protection provisions set forth in 29 C.F.R. Part 24.

employee/employer relationship. Generally, these cases hold that a prisoner cannot sustain an employer/employee relationship unless that prisoner is employed by an outside employer and the "economic reality" of the situation establishes a bona fide employment relationship between the inmate and the employer. This test was set forth clearly in Bonnette v. California Health and Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983). The Court formulated a test as an inquiry into the autonomy of the Employer such as whether the employer had the power to hire and fire the employee, supervised and controlled the employee's work schedules and/or conditions of employment, determined the rate and method of payment, and maintained employment records. See Carter v. Dutchess Community College, 735 F.2d 814 (2nd Cir. 1984) (if prisoner employed by outside employer, he may be entitled to minimum wage under FLSA depending on how many typical employer prerogatives are exercised over the inmate by that outside employer and to what extent); Young v. Cutter Biological, 694 F. cupp. 651 (D. Ariz. 1988) (if outside employer does not retain the traditional employer rights, then inmate labor belongs to the institution and inmate laborers do not lose their primary status as inmates simply because they work); Baker v. McNeil Island Corrections Center, 859 F.2d 124 (9th Cir. 1988)(employment inside a prison may be analagous to work release for purposes of Title VII applicability if the "economic reality" test can be met); Williams v. Meese, 926 F.2d 994 (10th Cir. 1991)(prisoners were not employees under Title VII of the Civil Rights Act or the Age Discrimination in Employment Act because the prisoner's relationship with the Bureau of Prisons arose out of status as an inmate and not as an employee). Amos v. United States, 13 Ct.Cl. 442 (1987) (a civilian cook foreman was an employee under the Fair Labor Standards Act (FLSA) but the inmate workers he supervised were not).

    In his brief, Complainant cites Plumley v. Federal Bureau of Prisons, 86-CAA-6, for support of his position that a federal prisoner is an employee for purposes of protection for whistleblower activities. In Plumley, in response to a Motion for Summary Judgment and/or Motion to Dismiss, an administrative law judge concluded that federal prison inmate workers were employees for the purpose discussed herein. However, this case was settled before a trial on the merits took place and neither a recommended decision and order nor an opinion by the Secretary were ever issued. Thus, as noted in Nottingham and Teves, this finding never became a final order of the Secretary of Labor and

therefore has no precedential value in the instant case. Moreover, none of the cases above were discussed in regard to the issue of whether a federal prisoner can be an employee for the purpose of federal statute applicability.

    Complainant argues that Federal Prison Industries is an entity distinct from the penal institution, that it was created to give inmates a marketable skill, and that the foreman who supervise the inmates are no different than foremen in any industry except for the added custodial element. The Complainant further cites Baker, supra, in support of his contention that he is an employee for the purpose of whistleblower protection. However, as indicated above, the Court in Baker limited its holding to employment relationships which were analagous to work release prisoners who were hired and paid by outside employers. He further cites Carter in which the Court stated:

We hold only that an inmate may be entitled under the law to receive the federal minimum wage from an outside employer, depending on how many typical employer prerogatives are exercised over the inmate by the outside employer, and to what extent.

    In Carter, the employer, a community college seeking tutors to work within the prison, made the initial proposal to "employ" workers; suggested a wage, developed eligibility criteria, recommended several inmates, was not required to take any inmate it did not want, decided how many sessions, and for how long, an inmate would be permitted to tutor, and sent the compensation directly the inmate's prison account.

    In conclusion, I find that the facts in this case do not warrant a finding that the Complainant is an employee for purposes of whistleblower protection. The Complainant is not employed in a situation analagous to a work release program and is not employed by an outside employer who meets the "economic reality" standard described above. Furthermore, FPI is a part of the Justice Department's Department of Corrections and has no independent power to conduct a commercial enterprise. Nor do inmates have a property interest in their federal prison industries job assignments; traditionally, inmates have had no entitlement to a specific job or even to any job. James v. Quinlan, 866 F.2d 627, cert. denied 110 S.Ct. 197, 107 L.Ed.2d

151 (1988). I therefore find that the Complainant is not an employee for the purpose of whistleblower protections pursuant to 29 C.F.R. Part 24.

    While I must dismiss this claim because the Complainant is not entitled to the protections afforded employees who file the same complaints as filed herein, I would note that there are public policy considerations at issue herein which are substantially different from the issues involved in Title VII and minimum wage claims. The whistleblower protection provisions serve the primary function of encouraging free channels of information regarding environmental hazards in order to protect the community at large. If an employee were not protected from an employer's potential retribution, that employee would not be willing to jeopardize a job or any economic privileges which attach to the employment in regard to promotions, benefits, etc. In contrast, under Title VII and FLSA, a complainant is seeking to better his or her own employment status, and that employee's success does not directly benefit the larger community. However, if a prisoner is not protected from retaliation for reporting environmental hazards, fewer reports will be made and the larger community may suffer directly. Furthermore, handlers of hazardous materials may be encouraged to contract with a prison to prevent complaints which can be costly. While I find this to be an unfortunate result, I am constricted by the case law and the language of the statute limiting whistleblower protections to "employees." While the drafters of this legislation did not, in all liklihood, consider the possibility of prisoner protection, such an oversight must be corrected by the legislature.

    Accordingly, I find that the Complainant is not an employee within the meaning of either the Clean Air Act or the Toxic Substances Control Act. Thus, the whistleblower protection provisions set forth in 29 C.F.R. Part 24 cannot apply. I therefore enter the following:

    IT is ORDERED that the Complaint of Douglas Coupar be, and it hereby is, DISMISSED.

    &bsp;   G. MARVIN BOBER
    &bsp;   Associate Chief Judge

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