Both the TSCA and the CAA contain identical clauses prohibiting an "employer" from "discharging ... or otherwise discriminating" (with respect to "compensation, terms, conditions, or privileges of employment") against an "employee" who "commences", "testifies" "assists" or "participates" in a TSCA and CAA proceeding directed against the employer. 15 U.S.C. § 2622(A); 42 U.S.C. § 7622(A). In order to remedy discriminatory acts, these statutes authorize "[a]ny employee" to "file ... a complaint with the Secretary of Labor ... alleging such ... discrimination." 25 U.S.C. 2622 (b) (1); 42 U.S.C. 7622 (b)(1). If the Secretary finds a violation, he is empowered to order the employer "to reinstate the complainant to the complainant's former position together with the compensation, terms, condition, and privileges of the complainant's employment" plus compensatory damages. 15 U.S.C. § 2622(b)(2)(B); 42 U.S.C. § 7622(b)(2)(B). Neither of these statutes define the terms "employer" or "employee". However, both statutes seek to protect a "whistleblowing" employee from being discriminated against by an employer.

    "The employment relationship has historically been a blend of status and contract, a relationship governed by a mixture of legally imposed rules expressing customs or public policies, and voluntarily bargained rules expressing mutual assent." Legal Protection for The Individual Employee, Finkin, Goldman an Summers, West Publishing Company, 1989, at p.1. To "employ" someone means to engage their services and "implies a request and a contract for a compensation." An "employee" is "one who works for an employer; a person working for salary or wages." See Black's Law Dictionary, Fourth Edition, 1957. It would appear, therefore, that the traditional notion of an employer-employee relationship is one which is contractual in nature and one which exists at the will of the contracting parties.

    Although the term "employee" is not defined in the CAA or TSCA there is nothing therein to suggest that either statute contemplates anything other than an employment relationship in the traditional sense. Moreover, while I would fully agree that the term "employee" should be broadly construed so as to provide protection to as large a population of whistleblowers as possible, neither statute compels that the normally recognized concept of an employer-employee relationship be convoluted to extend coverage.

    A federal prisoner is "committed, for such term of imprisonment as the sentencing court may direct, to the custody of the Attorney General of the United States, who shall designate the place of confinement where the sentence shall be served." 18 U.S.C. 4082(A). Therefore, being committed to a federal penal

institution, federal prisoners are incapable of entering into a contractually-based employer-employee relationship because the work they perform involves involuntary servitude. See Emory v. United States, 2 Ct. Cl. 579, 580 (1983).

    The way in which federal prisoners are assigned work also demonstrates that they are not "employees". The work performed by federal prisoners is controlled by FPI. The FPI determines in what way and extent operations shall be carried on by federal prisoners. Based on 18 U.S.C. § 4122(a), a federal prisoner is assigned work by the FPI and the prisoner does not voluntarily enter into a contract for hire. Moreover, payments made to federal prisoners are not a matter of contractual right. Instead, they are rendered "solely by congressional grace and governed by the rules and regulations promulgated by the Attorney General." Sprouse v. Federal Prison Industries, Inc., 480 F.2d 1 (5th Cir.), cert. denied, 414 U.S. 1095 (1973).

    The corollary to the term "employee" is the term "employer". It is clear that during his period of incarceration the penal system, of which FPI is a part, is the custodian of the Complainant. To be sure, the prison system is an "employer" in the typical sense of many employees, eg., guards and support personnel, but clearly, as to prisoners, the relationship is custodial.

inmates are convicted criminals incarcerated in a penitentiary. Sims v. Parke Davis & Co., 334 F. Supp. 774, 787 (E.D. Mich. 1971), aff'd, 453-F.2d 1259 (6th Cir. 1971), cert. denied, 405 U.S. 978,. . . . (1972). They are no civil servants. Inmates are not free to set their wages through negotiation or bargaining; they may not form unions or strike; and they may not quit work. Their service in vocational programs and their right to compensation is solely by legislative grace, primarily for their own benefit and rehabilitation. Sprouse v. Federal Prison Industries, Inc., 480 F.2d 1 (5th Cir. 1973), cert. denied, 414 U.S. 1095 . . .

Amos 13 Cl. Ct. at 445-46. See also Huntley v. Gunn Furniture Co., 79 F. Supp. 110 (W.D. Mich. 1948); Hugins v. Hart, 323 F. Supp. 898 (E.D. LA. 1971); Sims v. Parke Davis & Co., 334 F. Supp. 774 (E.D. Mich.) aff'd, 453 F.2d 1259 (6th Cir. 1971), cert. denied, 405 U.S. 978 (1972); Worsley v. Lash, 421 F. Supp. 556 (N.D. Ind. 1976).

    In Carter v. Dutchess Community College, 735 F.2d 8 (2nd Cir. 1984), another case arising under the Fair Labor Standards Act, an inmate participated in a work release program offered by Dutchess Community College. The inmate alleged that while he worked as a teaching assistant he was compensated at a level below the federal minimum wage, in violation of the Fair Labor Standards Act. The court held that in order to determine whether the prisoner was an employee of the community college, the court must evaluate the "economic reality" of the relationship. The court held that an "inmate may be entitled to receive the federal minimum wage from an outside employer depending on how many typical employer perogatives are exercised over the inmate by the outside employer and to what extent." Carter 735 F.2d at 14. (Emphasis added)

    A case more directly on point is Young v. Cutter Biological, 694 F. Supp. 651 (D. Ariz. 1988). In Young, the plaintiffs were inmates at an Arizona State prison. During their incarceration, the inmates worked at a "Plasma Center" located at the institution and operated by defendant Cutter Biological. The inmates sought to recover minimum wages for their labor under the Fair Labor Standards Act. The inmates brought action against Cutter Biological and the State Department of Corrections. The Young court

held that the inmates could not recover minimum wages Cutter Biological or the State Department of Correction.

    The court addressed the inmates action against the state separately. The court phrased the issue as whether the state or its agencies could ever be "employers" within the meaning of the Fair Labor Standards Act. The court stated that the "economic realities" test is appropriate in the typical inmate labor case, such as Carter, Alexander, Hugdins and Sims, where the inmate claims the outside company is his employer. However, in Young the inmates sought to apply the "economic realities" test to the custodial relationship between the correctional institute and the inmate. The court rejected the inmates argument and stated that the "economic realities" test is inapplicable in this type of action.

    Moreover, the court stated that cases such as Carter, Alexander, Hudgins and Sims support the holding that the state or its agencies cannot be "employers" within the FLSA. The court stated that in the typical inmate labor case where the inmate claims the outside company is his employer, the courts examine whether the outside company exercise typical employer perogatives over the inmates. Young, 694 F. Supp. at 657. If the court concludes that the private company does not retain the traditional employer rights, then it follows that the FLSA is not applicable because the inmates labor belongs to the institution and inmate laborers do not lose their primary status as inmates simply because they work. Therefore, the court concluded that neither the state nor its agencies could ever be considered employers of the inmates.

    More recently, in Williams v. Meese, 926 F.2d 994 (10th Cir. 1991), the court considered the suit of a prison inmate alleging, inter alias, discrimination and retaliation in connection with prison job assignments. In holding that the prison inmate was not an employee under Title VII of the Civil Rights Act or the Age Discrimination in Employment Act (ADEA), the Court found that his relationship with the Bureau of Prisons arose out of his status as an inmate and not as an employee. The court said:

Although his relationship with defendants may contain some elements commonly present in an employment relationship, it arises "from [plaintiff's] having been convicted and sentenced to imprisonment in the [defendant's] correctional institution. The primary purpose of their association [is] incarceration, not employment."

Williams, 926 F.2d at 997, citations omitted.

    Based on the foregoing, I find that the Complainant is not an employee within the meaning of either the Clean Air Act of the Toxic Substances Control Act. His status arises out of incarceration at FPI and his relationship with FPI is not contractual in nature. Therefore, he is not entitled to the anti-discrimination provisions contained therein. Since the Complainant is not an employee entitled to the protection of the statutes under which he brings this matter, this agency is without jurisdiction to consider the allegations of his complaint. See Wensil v. B. F. Shaw Company, Savannah River Plant, et al, Final Decision and Order of the Secretary 86-ERA-15, etc. 4 OAA 2 at p. 85 (March 29, 1990). In view of my findings herein, it is unnecessary to consider any other issues raised as a consequence of the filing of the Complaint in this case. Accordingly, I enter the following:

    It is Ordered that the Complaint of William Teves be, and it hereby is, DISMISSED.

       DANIEL J. ROKETENETZ
       Administrative Law Judge