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Date: Mar. 2022
From: Harvard Law Review(Vol. 135, Issue 5)
Publisher: Harvard Law Review Association
Document Type: Case note
Length: 3,508 words
Lexile Measure: 2190L

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Employment Law--Fair Labor Standards Act--Fourth Circuit Holds that Detained Immigrant Workers Are Not "Employees" Under the Fair Labor Standards Act.-- Ndambi v. CoreCivic, Inc., 990 F.3d 369 (4th Cir. 2021).

Over three decades ago, the Fifth Circuit held in Alvarado Guevara v. INS (1) that detained immigrants who worked for pay at a government processing facility did not qualify as "employees" under the Fair Labor Standards Act1 (2) (FLSA) and were therefore not entitled to the law's minimum wage protections. (3) Central to the court's holding was the notion that the FLSA contemplated the welfare of "the worker in American industry," an economic context that immigrant detainees were "removed from." (4) But since that decision, the system of immigration detention in the united states has changed significantly--ballooning in scale while becoming increasingly privatized and ever more profitable. (5) In light of this modern economic reality, new lawsuits brought by former detainee workers revitalized challenges against detention-facility compensation policies. (6) Recently, however, in Ndambi v. CoreCivic, Inc. (7)--the first case since Alvarado Guevara to squarely address whether the FLSA applies to detained immigrant workers--the Fourth Circuit stood pat, reasoning, along lines similar to those of the Fifth Circuit over thirty years ago, that detainee workers exist outside of the "traditional employment paradigm" envisioned by Congress when it enacted the FLSA. (8) The Ndambi court framed its ruling as faithful to decades of FLSA jurisprudence, giving insufficient regard to the notion that the modern context of Ndambi warranted a departure from seemingly settled case law. It accordingly failed to consider how Congress's long-standing interest in protecting not only workers, but also American industry itself, justified an alternative holding sensitive to the largely privatized and for-profit character of immigration detention today. Desmond Ndambi, Mbah Emmanuel Abi, and Nkemtoh Moses Awombang are members of an English-speaking minority in Cameroon. (9) In 2017, they fled to the United States seeking asylum from alleged torture and political persecution. (10) Pending their asylum proceedings, all three were detained by U.S. Immigration and Customs Enforcement (ICE) at the Cibola County Correctional Center in New Mexico. (11) The facility was owned and managed by CoreCivic, Inc., (12) one of the largest private corrections contractors in the United States. (13) Per CoreCivic's arrangement with ICE, the complex was required to operate in accordance with ICE's Performance-Based National Detention Standards (PBNDS). (14) These standards stipulated that CoreCivic offer and administer a Voluntary Work Program (VWP) for its detainees. (15) Specifically, CoreCivic was required to provide detainees with the opportunity to work voluntarily during their confinement and to compensate them accordingly. (16) CoreCivic retained the discretion to set its own wage scale--so long as compensation was "at least $1.00 ... per day"--and to develop site-specific procedures for selecting program participants. (17)

During their detention, Ndambi, Abi, and Awombang all participated in the facility's VWP, performing tens of hours of janitorial, library, and kitchen work each week. (18) For their labor, the three were compensated between $1.00 a day and $15.00 a week,...

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Gale Document Number: GALE|A697327427