By Annie Rudolph, Melinda Kukaj and Charlie Simmons
OAKLAND, CA – Legal Services for Prisoners with Children (LSPC) this week denounced the California Department of Corrections and Rehabilitation (CDCR) proposed plan to double the general wage scale for incarcerated workers.
In a statement, LSPC agreed there is a dire need to pay incarcerated people more, but they condemned the department’s proposal for failing to create pay schedules that adequately address the needs of incarcerated workers.
The public comment asserts the proposal does not nearly go far enough to justly compensate incarcerated workers for their labor and fails to acknowledge them as employees protected by California labor laws.
Currently, the hourly wage for most incarcerated employees ranges between $0.08 and $0.74 per hour, and LSPC critiques the proposed wage increase because “in abstract, that sounds significant, but since the starting wage is currently so low, it amounts to increases measured by nickels and dimes.”
For example, the LSPC notes the lowest level worker would get a raise from $0.08-0.13 to $0.16-0.26 per hour, “special skill” laborers would get a raise from $0.19-0.32 to $0.38-0.64 per hour, and “lead” level workers’ pay would increase from $0.32-0.37 to $0.64-74 per hour.
The same proposal also calls for a maximum daily rate for “Conservation Camp workers, i.e. fire camp.” According to the proposed § 3041.2(a)(2), the highest pay rate for these workers “will have a daily pay cap of $10.24 while the lowest will be $5.80 per day.”
LSPC explains that “the daily rate (and the regulation does not tie this to any number of hours, which in an emergency situation, we imagine, might exceed a normal eight-hour day) is, at best, around two-thirds of the state’s general minimum hourly wage for non-incarcerated workers, and the lowest range for camp workers is just above one-third.”
According to the CDCR, the pay increases will “incentivize work and job retention; enhance self-esteem in furtherance of rehabilitative goals; enable payment of restitution obligations; and allow incarcerated persons to save money for reintegration upon parole or release.”
In its initial statement, the department claimed it had no “reasonable alternatives” to alter its “initial determination” and that these proposed changes would be the most effective and least burdensome measure.
LSPC, in arguing for substantially higher wages, charges paying incarcerated employees and fire camp workers “the statewide minimum wage of $15.50 an hour” would present an alternative that “would, incrementally, achieve the goals more effectively.”
The group used the CDCR’s own words against them to postulate that if “a pay raise from a couple of dimes to a couple of quarters an hour ‘provid(es) better incentives to accept and retain jobs’ (ISOR, at 1), then an increase to at least $15.50 would provide stronger incentives.”
The comment stresses alternatives do exist.
“For the wage scale applicable to the ‘lead’ level, for instance, one can readily think of at least 1,476 alternatives that would better achieve the stated goal; one alternative for every cent between the proposed highest wage of seventy-four cents an hour and the general minimum wage,” said LSPC.
And, said LSPC, for incarcerated fire camp workers, increasing their pay to the state minimum wage or even higher to a wage more comparable to Cal Fire employees would better incentivize this work while honoring their dignity and self-worth which the department recognizes as important.
Furthermore, the LSPC responded to the CDCR’s claim the proposed regulations have “no effect on the creation of new, or the elimination of existing, jobs or businesses within California, or effect the expansion of businesses currently doing business in California,” by stating that it is “totally implausible” that the prison labor market has no effect on the general economy.
The comment condemns the department’s hypocritical and antithetical stance on how the proposed regulations would affect general welfare.
LSPC explains how “this inconsistency is a symptom of the basic policy tension at the heart of these regulations; to wit – the aim of increasing the pay of incarcerated workers, to improve their economic situation and foster self-respect, while at the same time treating them as an underclass of workers not entitled to ordinary minimum protections.”
The LSPC also calls into question the legality of employing prisoners for wages below the state minimum, arguing CDCR “has been massively violating the law in this area for years.”
The state’s labor code calls for a “minimum wage for all industries” and all state employers are subject to the statute. According to the LSPC, the “fiction that CDCR is not covered by the Labor Code is completely unsupportable by basic principles of statutory interpretation.”
LSPC added the state’s “Penal Code expressly recognizes incarcerated work as employment” and the Labor Code “plainly covers a state agency like CDCR who employs workers, regardless of whether they are incarcerated.”
LSPC acknowledges “provisions on the books that appear to contravene the interpretation just advanced,” drawing from a penal code in 2005 which established “a maximum wage for Prison Industry Authority workers that is below the general minimum wage.”
However the labor code, which establishes a minimum wage, was established in 2016. LSPC notes that “when two statutes conflict, ceteris paribus, the latest in time governs.” Therefore, the CDCR is “legally bound to apply the minimum wage” for incarcerated employees, insists LSPC.
LSPC also cites a final “policy intention” of the CDCR, which “completely undercuts the expected efficacy of the rule changes,” noting this policy intention involves “ changing many work assignments from full-time to halftime.”
While the CDCR claims this move will “provide greater flexibility to have a paid work assignment and participate in other, unpaid rehabilitative programs, and to increase wages without additional cost to the taxpayers” LSPC said it found it counterproductive to the aims of the organization.
LSPC added this move will not generate “more buying power” if the net income is unchanged and it fails to address questions surrounding whether an increased rate “is sufficient to achieve the stated goal of incentivization.”
LSPC also criticized the department for not supplying “any analysis of whether the self-worth goal is better achieved through reduced hours or through maintaining full-time opportunities for persons who want that.”
LSPC, in short, maintained the CDCR proposal “does not go far enough in compensating incarcerated workers for their work. The wage levels should be increased so as to eliminate the subminimum condition which the proposed regulations would allow to persist.”