Attorney General's Opinion
Attorney General, Richard Blumenthal
November 8, 2007
Honorable Patricia H. Mayfield
Department of Labor
200 Folly Brook Boulevard
Wethersfield, CT 06109-1114
Dear Commissioner Mayfield:
You have asked for advice on whether inmates working within a correctional institution other than as part of an enterprise program combining State Use Industries with Private Sector Prison Industries may be considered employees of the Connecticut Department of Correction (DOC) for purposes of the Connecticut Occupational Safety and Health Act, Conn. Gen. Stat. § 31-367 et seq. For the following reasons it is our opinion that inmates performing housekeeping services, including stripping and removing asbestos-containing floor tiles, within a correctional facility are not DOC employees covered by the Connecticut Occupational Safety and Health Act. Nevertheless, we understand the Department of Corrections has policies to provide a safe working environment to all inmates working within a correctional institution.
The Connecticut Occupational Safety and Health Act defines “employer” as limited to public employers, specifically the State and its political subdivisions. Conn. Gen. Stat. § 31-367(d). The federal Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., applies to private employers in Connecticut. The Connecticut Occupational Safety and Health Act defines “employee” as any person engaged in service to an employer in a business of his employer. However, the determination of an employer-employee relationship in this particular inmate context is not dependent on traditional tests for employee status, but, instead, is dependent on the penological relationship between the inmate and the State correctional institution, depriving the inmate ab initio of employee status.
Pursuant to state statutes governing correctional institutions and the DOC, the Commissioner of Correction has broad authority to establish rules for custodial and rehabilitative methods of correctional institutions and facilities in accordance with recognized correctional standards. Conn. Gen. Stat. § 18-81. The statute further provides for the Commissioner to be responsible for establishing disciplinary, diagnostic, classification, treatment, vocational and academic education, research and statistics, training and development services and programs throughout the department. Conn. Gen. Stat. § 18-7, applicable to the Connecticut Correctional Institution, Somers, provides for the warden to manage that institution, subject to the direction of the Commissioner of Correction, and to keep all prisoners employed in such labor as the Commissioner orders, during the term of their imprisonment. Those statutory provisions establish that the relationship between the correctional institution and the inmate as worker is not an employer-employee relationship, but instead is one between prison and prisoner assigned work as part of his sentence of incarceration.
This analysis is supported by Hale v. State of Arizona, 993 F.3d 1387 (9th Cir. 1993), in which a federal appeals court held that inmates working for a state correctional institution could not be considered employees of the institution for purposes of the federal Fair Labor Standards Act (FLSA). The court relied on an Arizona statute providing the State’s authority to require prisoners to engage in hard labor for not less than forty hours per week (id. at 1394), drawing a critical distinction between inmates working for private employers on work release programs and inmates working for correctional institutions. According to the court, that distinction made work by inmates in state correctional institution programs part of their sentences of incarceration for purposes of training and rehabilitation rather than work as governmental employees. Id. at 1394-95.
The DOC’s own policies governing housekeeping services within correctional institutions are consistent with the prison/prisoner relationship. They establish that prison labor is required for sentenced inmates rather than voluntary. Work assignments are subject to approval by the facility’s classification committee, and, once an inmate is approved, the request is sent to classification for assignment. An inmate’s refusal of an assignment subjects him to disciplinary action pursuant to the agency’s Code of Penal Discipline, including denied privileges, preclusion from a classification reduction and preclusion from a community release program.
We understand that departmental policies require the agency to ensure appropriate safety and protective equipment for each job station and training for each inmate in the safe and proper use and operation of any equipment. Departmental policy also extends the equipment and training obligation to the use and handling of any tool, chemical, hazardous material or waste which the inmate is expected to operate, or contact, including training in handling asbestos-containing floor tiles. However, because prisoners are not employees of the state, the agency has the discretion to determine the training and equipment to be provided rather than having such matters imposed by the Occupational Safety and Health Act.1
This office concludes that inmates performing housekeeping services within correctional institutions are not DOC employees covered by the Connecticut Occupational Safety and Health Act.
Very truly yours,
1 In National Electrical Contractors Association, Cascade Chapter v. Riveland, 138 Wash.2d 9, 27, 978 P.2d 481, 490 (1999) the Washington Supreme Court imposed that state's version of the Occupational Safety and Health Act on the Washington Department of Corrections because the Department's policy explicitly required compliance with the Washington Industrial Safety and Health Act. There is no such requirement in the Connecticut Department of Corrections' policies.
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