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California: Employment Status of Inmate Workers: How They Are Protected and How They Are Not

February 28, 2023 (7 min read)

In December 2022, the Workers’ Compensation Appeals Board (WCAB) issued four panel decisions that defined the parameters for analysis of the employment status of inmate workers for the purposes of determining whether these inmate workers are entitled to the protections of workers’ compensation and other labor laws. (Garcia, Castaneda, Chaparro v. County of Fresno (December 30, 2022) [2022 Cal. Wrk. Comp. P.D. LEXIS 369], Moreno v. County of San Bernardino (December 19, 2022) [2022 Cal. Wrk. Comp. P.D. LEXIS 335], Ciprian v. Larry D. Smith Corr. Facility (December 21, 2022) [2022 Cal. Wrk. Comp. P.D. LEXIS 346], Brown v. County of Los Angeles/Sheriff's Dept. (December 19, 2022) [2022 Cal. Wrk. Comp. P.D. LEXIS 352].)

In each of these cases, the WCAB starts its analysis with the definition of “employee” found in Labor Code, section 3351, as “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed” and includes “[a]ll persons incarcerated in a state penal or correctional institution while engaged in assigned work or employment . . . .” (Lab. Code, § 3351(e).) The WCAB points out that section 3351 does not include county inmates in the definition of employee. All four cases that issued in December 2022 involved county inmate workers.

Penal Code, section 4017, the WCAB points out, provides that county inmates who work in fire suppression are considered employees of the county and are protected by workers’ compensation. But this special carve-out is only limited to county inmates working in fire suppression.

The employment status of the remainder of the county inmate workers are not statutorily defined and are subject to a “voluntary” / “compulsory” test, as defined in the following line of cases: Rowland v. County of Sonoma, 220 Cal.App.3d 331, 333-334; Pruitt v. Workers’ Comp. Appeals Bd. (1968) 261 Cal.App.2d 546 [33 Cal.Comp.Cases 225]; State Comp. Ins. Fund v. Workmen’s Comp. Appeals Bd. (Childs) (1970) 8 Cal.App.3d 978 [35 Cal.Comp.Cases 295]; Parsons v. Workers’ Comp. Appeals Bd. (1981) 126 Cal.App.3d 629 [46 Cal.Comp.Cases 1304]; Morales v. Workers’ Comp. Appeals Bd. (1986) 186 Cal.App.3d 283 [51 Cal.Comp.Cases 473]; County of Kings v. Workers’ Comp. Appeals Bd. (Garza) (1986) 51 Cal.Comp.Cases 424 [1986 Cal.Wrk. Comp. LEXIS 3361] (writ denied); Salazar v. Workers’ Comp. Appeals Bd. (1980) 45 Cal.Comp.Cases 16 [1980 Cal. Wrk. Comp. LEXIS 3119] (writ denied). The test is whether the county inmate worker “volunteered” to work or was forced to work as an incident of incarceration. If an inmate was performing compulsory work as an incident of incarceration, the inmate worker is not an employee and has no rights to workers’ compensation benefits. If an inmate “volunteered” for a job, he is deemed an employee and entitled to workers’ compensation. In deciding whether an inmate was performing compulsory or voluntary work, trial courts may ask the following questions (the Rowland factors):

(1) Did the county require the worker to work as a condition of incarceration?

(2) Did the inmate worker volunteer for the assignment? and

(3) What considerations were received, if any; for example, monetary compensation, work-time credits, freedom from incarceration, etc. (Rowland, 220 Cal.App.3d at pp. 333-334.)

The WCAB also stated that local ordinances addressing the employment status of county inmate workers are not determinative. “[T]he language in a local ordinance with respect to assigning work to inmates is not determinative, although it may be considered in determining whether the inmate's work is compulsory or voluntary. Both the Pruitt, supra, 261 Cal.App.2d 546 and Parsons, supra, 126 Cal.App.3d 629 courts focused their analysis on the relationship between the inmates and the county despite there being a local ordinance on the matter.”
 (Brown, supra.)

Thus, workers’ compensation protections differ between state inmates, county inmates, and county inmates working in fire suppression. The former and latter are statutorily protected. County inmates who did not work in fire suppression are at the mercy of this “voluntary” / “compulsory” test. This raises equal protection considerations, especially in circumstances when the court has the discretion to punish some crimes by imprisonment in state prison or county jail. (See Pen. Code § 17(b).)

The WCAB acknowledged this dilemma. It stated,

. . . we are cognizant here of the disparate impact in determining the employee status between persons incarcerated in state prison and person incarcerated in county jail. State inmates are statutorily included in the definition of “employee” while county inmates are subjected to a compulsory test to determine their employee status. We are also cognizant of the difference between county inmates who work in fire suppression and county inmates who do not, the former being statutorily included in the definition of employee, while the latter being subjected to the aforementioned compulsory test. Lastly, we are aware that in more recent laws, employer control is a big factor in determining employment status (the more employer control, the more likely employment status is found [fn 5: See Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903 [232 Cal. Rptr. 3d 1, 416 P.3d 1] and S. G. Borello & Sons, Inc. v. Dept. of Ind. Relations (1989) 48 Cal.3d 341 [256 Cal. Rptr. 543, 769 P.2d 399, 54 Cal.Comp.Cases 80]], whereas here, the opposite effect results when applying the compulsory test, in that the more control the county exercises, the more likely the inmate's work is found to be compulsory of incarceration without the protections of an employment relationship. Given these considerations, we find that the case law with respect to county inmates is antiquated and could use a fresh look by the Legislature or courts. That said, we understand that we are bound by existing case law and are constrained in applying the compulsory test explained above.
(Garcia, supra; Moreno, supra; Ciprian, supra; Brown, supra.)

The WCAB further recognized that this “voluntary” / “compulsory” test may be difficult to apply. It stated,

We recognize that the relationship between a correctional officer and an inmate is unique and distinct from that of an ordinary employer and employee. Correctional officers have much more power over an inmate and inmates have less rights in prison. Once a person enters a prison and surrenders his freedom, he is bound by strict rules with respect to housing, personal belongings, visitation rights, and personal movement. We further recognize that sometimes policies and procedures do not translate into practice. (Garcia, supra.)

This “voluntary” / “compulsory” test is further complicated by the fact that the U.S. and California Constitutions sanction involuntary servitude as a punishment for crime. (U.S. Const., 13th Amend. [“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”]; Cal. Const., art. I, § 6 [“Slavery is prohibited. Involuntary servitude is prohibited except to punish a crime.”].)

Last year, voters in four states—Alabama, Oregon, Tennessee and Vermont—approved ballot measures that changed their state constitutions to ban slavery and/or involuntary servitude as a punishment for crime. ( Voters in California, however, failed to put a similar measure on the ballot, with California Governor Gavin Newsom citing concerns about the cost to taxpayers if the State had to pay inmate workers minimum wages. ( As of February 2023, however, California lawmakers are advancing legislation to end forced labor as a punishment for crime. ( If they succeed, presumably the “compulsory” part of the “voluntary” / “compulsory” test will be gone, making all inmate work voluntary. What this means in terms of labor protections for inmate workers, though, remains to be seen.

Moreover, the applicants in Garcia, supra, have filed a writ with the Fifth District California Court of Appeal, case nos. F085705 and F085713, arguing that that the inmate workers did not receive compensation for their work and therefore cannot be deemed employees protected by workers’ compensation. Garcia, supra, is unique in that it involved a massive gas explosion that killed one inmate worker and severely injured several others. The applicants in Garcia wish to file a civil suit, where the value of the potential civil damages is greater than the potential value of the workers’ compensation benefits. The WCAB addressed this issue as follows:

While we sympathize with the inmates' arguments that they did not volunteer to work in prison for the reasons described above, we note that this is a unique position in light of the scale of the accident and the severity of the injuries sustained. In ordinary circumstances, an inmate would welcome a finding of employee status and an award of workers' compensation benefits. In any event, we do not, and cannot, take into consideration a particular party's desire and must base our decision on law and reason. (Garcia, supra.)

In short, the employment status of county inmate workers and how they are protected by labor laws are evolving. While there is a lot of uncertainty now, what is certain is that changes are coming.

Reminder: Board panel decisions are not binding precedent.