DATE: February 28, 1995
CASE NOS. 90-TSC-00001
91-TSC-00003
IN THE MATTER OF
DOUGLAS A. COUPAR,
COMPLAINANT,
v.
FEDERAL CORRECTIONAL INSTITUTION,
EL RENO, OKLAHOMA,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION
The Administrative Law Judge (ALJ) submitted a Recommended
Decision and Order (R. D. and O.) in this case arising under the
employee protection provisions of the Toxic Substances Control
Act (TSCA), 15 U.S.C. § 2622 (1988), and the Clean Air Act,
as amended, 42 U.S.C. § 7622 (1988) (CAA). R. D. and O. at
6. See 29 C.F.R. Part 24 (1994). The ALJ determined that
the complainant was not an employee within the meaning of either
the CAA or the TSCA and therefore could not invoke the employee
protection provisions of those statutes. The Administrator of
the Wage and Hour Division has filed a brief amicus curie
in support of the ALJ's recommended decision. The Recommended
Decision and Order of the ALJ is adopted and the complaint is
hereby dismissed.
DISCUSSION
The complainant, Mr. Coupar, is a prisoner incarcerated
at the Federal Correctional Institution at El Reno, Oklahoma. He
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works under the supervision of Federal Prison Industries ("FPI"),
a corporation owned and operated by the federal government.
Mr. Coupar alleges that he was not promoted within FPI because he
filed complaints of improper storage of hazardous chemicals, and
sewage leaking into ground water and polluting surrounding water
sources. He claims he was told he would never be promoted
because of the trouble he was causing, and that a few weeks after
filing a complaint with the Wage-Hour Division he was transferred
in the middle of the night to a higher security-level prison.
Although both the TSCA and the CAA limit coverage to
"employee[s]," neither act substantively defines the term. The
Supreme Court has on a number of occasions construed the meaning
of "employee" where it was not defined in the statute containing
the term. See, e.g., Kelley v. Southern
Pacific Co., 419 U.S. 318, 322-323 (1974); Baker V.
Texas & Pacific R. Co., 359 U.S. 227,228 (1959) (per
curiam);Robinson v. Baltimore & Ohio R. Co.,
237 U.S. 84, 94 (1915). In Community for Creative Non-
Violence v. Reid, 490 U.S. 730 (1989) the Supreme Court
announced the rule that it would follow in such cases:
[w]here Congress uses terms that have
accumulated settled meaning under ... the
common law, a court must infer, unless the
statute otherwise dictates, that Congress
means to incorporate the established meaning
of these terms....In the past, when Congress
has used the term "employee" without defining
it, we have concluded that Congress intended
to describe the conventional master-servant
relationship as understood by common-law
agency doctrine.
In the recent case of Nationwide Mutual Insurance
Company v. Darden, 112 S.Ct. 1344, 117 L. Ed. 2d 281
(1992), the Court was asked to construe the term "employee" as it
appears in 3(6) of the Employee Retirement Income Security Act of
1974 (ERISA), 29 U.S.C. 1002(6)(1988). The Court took the
occasion to reaffirm its commitment to the rule set down in
Reid. The Court announced that it was abandoning
its earlier emphasis in NLRB v. Hearst Publications,
Inc., 322 U.S. at 120-129 and United States v.
Silk, 331 U.S. at 713, construing the term "employee" in
the context of a particular federal statute "in light of the
mischief to be corrected and the end to be attained." The Court
noted that Congress, following each of those opinions, had
amended the statute so construed to demonstrate that the usual
common-law principles were the keys to defining the term
"employee." The Court stated:
To be sure, Congress did not strictly speaking
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'overrule' our interpretation of those statutes, since the
Constitution invests the Judiciary, not the Legislature, with the
final power to construe the law. But a principal of statutory
construction can endure just so many legislative revisitations,
and Reid's presumption that Congress means an agency law
definition for 'employee' unless it clearly indicates otherwise
signaled our abandonment of Silk's emphasis on construing
that term 'in light of the mischief to be corrected and the end
to be attained.'
The Supreme Court has, therefore, clearly set down the rule
to be followed in the present case. Complainant can only succeed
if he can demonstrate that under common law principles, he would
be deemed to be an "employee." He must demonstrate that a
"conventional master-servant relationship as understood by
common-law agency doctrine" exists between him and the Federal
Correctional Institution at El Reno. Darden, 117 L.
Ed. 2d at 589. The relationship between a prisoner and a
correctional institution is far removed from the conventional
master-servant relationship under the common law. The
relationship between a prisoner and a correctional institution is
penological and not economic. Hale v. State of
Arizona, 993 F.2d 1387, 1394-95 (9th Cir. 1993). "The
state's absolute power over [inmates] is a power that is not
characteristic of - and indeed is inconsistent with - the
bargained for exchange of labor which occurs in a true employer-
employee relationship." Gilbreath v. Cutter Biological,
Inc., 931 F.2d 1320, 1325 (9th Cir. 1991).
The criteria employed by the common law of agency to
distinguish employees from independent contractors have little
application when it comes to characterizing the relationship
between a prisoner and a correctional institution. Lacking in
the correctional setting are the essential voluntary, bargained
for elements characteristic of the conventional employer-employee
relationship. Even where it might appear on the surface that a
voluntary, bargained for exchange has occurred between a prisoner
and an employer, the ultimate and absolute control of the
prisoner by correctional authorities negates that impression.
Of course, one can, as complainant does, analogize work in a
prison industry with employment in the private economy. Pointing
out similarities, nevertheless, falls far short of establishing
equivalency at the common law. The absence of common law
authority for the proposition that prisoners are employees, other
than for purposes of tort liability, [1] is fatal to
complainant's argument.
Prison administration poses unique and challenging problems
for the policy maker. The procedural protections provided
prisoners must be balanced against the ever present need to
maintain order and discipline in a correctional setting.
[PAGE 4]
Congress has responded to this need by investing in the Attorney
General and Bureau of Prisons broad authority to establish the
rules and regulations governing the conditions of confinement.
[2] It is inconceivable then that Congress would work a
substantial change in prisoner rights without careful study and
consideration of its impact on existing law and its consequences
for prison administration. Missing from the legislative history
is the deliberation that one would expect if Congress were indeed
pursuing a course that could remove part of the authority for
prison administration from the Attorney General.
I recognize that protection of prisoner employees under the
CAA and the TSCA would serve the purpose of keeping channels of
information open to environmental protection agencies, enabling
them to protect the public more effectively against environmental
hazards, and that failure to cover prisoners may result in some
hazards going unreported. However, I am unwilling to interpret
the CAA and the TSCA, absent a more clear legislative intent to
do so, in a manner which could lead to the interjection of the
Labor Department into the internal administration of the nation's
prison system.
Without sufficient common law support for his position,
complainant relies upon cases arising under the Fair Labor
Standards Act (FLSA). SeeCarter v. Dutchess
Community College, 735 F.2d 8 (2d Cir. 1984);
Watson v. Graves, 909 F.2d 1549 (5th Cir.
1990). Any doubt about whether complainant's reliance is
misplaced is removed by the Court in Darden, supra:
The definition of "employee" in the FLSA evidently
derives from the child labor statutes, see
Rutherford Food, supra at 728, and, on its face,
goes beyond its ERISA counterpart. While the FLSA,
like ERISA, defines an "employee" to include "any
individual employed by an employer," it defines the
verb "employ" expansively to mean "suffer or permit to
work." 52 Stat. 1060, 3, codified at 29 U.S.C. 203
(e),(g). This latter definition, whose striking breadth
we have previously noted, Rutherford Food,
supra, at 728, stretches the meaning of "employee"
to cover some parties who might not qualify as such
under a strict application of traditional agency law
principles. ERISA lacks any such provision, however,
and the textual asymmetry between the two statutes
precludes reliance on FLSA cases when construing
ERISA's concept of "employee."
The Court's reasoning is equally compelling in the case at
hand. The actual language of the TCSA and the CAA offer no
justification for extending the meaning of "employee" beyond its
common law bounds. Nor has complainant demonstrated that failure
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to include prisoners within the definition of "employee" under
these statutes would thwart congressional design or lead to
absurd results. To the contrary, limiting coverage of these
statutes to traditional common law employees is a perfectly
rational legislative decision and consistent with the express
purposes of the legislation.
Accordingly, the complaint in this case is DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Restatement (Second) of Agency § 224 (1958).
[2]
18 U.S.C. §§ 3621, 3622, 3624, 4001, 4042, and 4082,
and 28 U.S.C. §§ 509, 510, 1346(b), and 2671-80.
