Baltimore County defends use of prisoner work at recycling plant before 4th Circuit

Prisoners who were paid well below minimum wage to work in Baltimore County‘s recycling plant should not be considered “employees” under federal labor law, the county argued in a new brief to the 4th U.S. Circuit Court of Appeals.

The brief is the latest effort by the county to defend a now-defunct work program that sent inmates from the Baltimore County Detention Center to sort recyclables at the county’s plant in Cockeysville.

The plaintiffs, a group of inmates, appealed to the 4th Circuit after a federal judge in June threw out their class-action lawsuit and found that the inmates are not employees under the federal Fair Labor Standards Act.

Baltimore County’s lawyers are urging the federal appellate court to affirm the lower court’s ruling and find that the work program had rehabilitative goals, not just economic ones.

The inmate workers dispute that claim, arguing that the cheap inmate labor allowed Baltimore County to minimize the cost of running the plant and maximize the amount of recyclables that could be processed.

Their lawsuit claimed the working conditions at the plant were egregious. Prisoners were not provided with adequate clothing to keep warm in the open-air facility during winter, when the holiday rush also meant inmates had to work long hours to keep up with the workload, according to the suit. And some became hungry enough to take discarded food off the conveyer belt that carried trash and recyclables, according to court records.

The inmates received $20 per day to sort trash from recyclables, which were then consolidated into bales that the county sold to the highest bidder.

The county stopped using inmate labor at the recycling plant in 2020, according to court records.

In its brief, Baltimore County argued that it operated the recycling plant at a loss while the inmates worked there and did not gain a competitive advantage against private companies — one factor used to decide if a worker falls under the FLSA.

“Rather, the County demonstrated that it deliberately avoided competition with private recyclers and used all revenue from selling recyclables to pay for public goods, including the costs of Plaintiffs’ own incarceration,” wrote Jeffrey T. Johnson, a lawyer at Nelson Mullins Riley & Scarborough LLP who is representing Baltimore County.

The county also worked to distinguish the case from a similar one in Pennsylvania, where inmates who worked at a recycling plant were held to be employees under the FLSA. While the plaintiffs say that the case benefits their argument, Baltimore County has argued that it is distinguishable because the Pennsylvania county had outsourced its recycling to a private company.

The Baltimore County inmates were also in custody while they worked at the recycling plant and could not bargain over their working conditions, the county’s lawyers wrote. Their food and shelter were also being provided by the county during their incarceration, so paying a minimum wage is not necessary, the county argued.

Howard B. Hoffman, the lawyer for the inmates, wrote in his brief to the 4th Circuit that the prisoners needed to be paid minimum wage because the county did not meet their basic needs. Inmates needed money to supplement the inadequate food and clothing they received on the job, according to the lawsuit.

In an email, Hoffman said Tuesday that evidence in the case has shown the county had a clear profit motive for using inmate workers, whom it could pay subminimum wages, in the recycling plant.

“Baltimore County is the only jurisdiction that we know, in this Circuit, who engaged in this practice,” Hoffman said. “But left unchecked, the County’s position would create a race to the bottom among nearly every jurisdiction to staff their recycling facilities with inmates.  This encourages lengthier sentences for minor crimes for first offenders and the deliberate diversion of inmates from private work release to the County’s recycling center – representing the perfect conflict of interest which is on display in this case.”

A spokesperson for the county declined to comment.