Mistrial halts case on minimum wage for immigrant detainees

A trial over whether the GEO Group must pay minimum wage — instead of $1 a day — to immigration detainees who perform tasks like cooking and cleaning at its for-profit detention center in Washington state has ended with a hung jury.

U.S. District Judge Robert Bryan in Tacoma declared a mistrial Thursday after the nine-person jury indicated they could not reach unanimous agreement following a two-week trial and about two days of deliberation.

“Nobody's happy, but nobody lost,” Bryan told the attorneys afterward.

Democratic Washington Attorney General Bob Ferguson sued the Florida-based GEO Group in 2017, saying the company had unjustly profited by running the Northwest Detention Center in Tacoma — now known as the Northwest ICE Processing Center — on the backs of captive workers.

A separate lawsuit filed on behalf of detainees was also filed that year, seeking back pay. The judge, who rejected several attempts by GEO to dismiss the lawsuits, consolidated the cases for trial, which he conducted via Zoom because of the pandemic.

The judge said he expected that the cases would be set for a new trial.

“GEO, a multi-billion-dollar for-profit prison corporation that is publicly traded on the New York Stock Exchange, pays workers $1 a day or less to perform essential services necessary to maintain the Northwest ICE Processing Center," Ferguson said in a written statement Thursday. “A hung jury allows us to re-try the claim again in front of a new jury.”

GEO maintained that the detainees were not employees under the Washington Minimum Wage Act. Even if they were, the company said, it would be unlawfully discriminatory for Washington to require GEO to pay them minimum wage — now $13.69 an hour — when the state doesn’t pay minimum wage to inmates who work at its own prisons or other detention facilities.

The jury indicated it could not reach agreement on either question before it: whether the detainees were employed by GEO, and, if they were employed, if the law discriminated against the company.

The definition of “employee” in Washington’s minimum wage law is broad — it includes anyone who is permitted to work by an employer, without regard to immigration or legal work status. The law says residents of “a state, county, or municipal” detention facility are not entitled to minimum wage for work they perform.

The detention center didn't fit that exemption because it's a private, for-profit facility, not a “state, county or municipal” one, attorneys for the state and for the detainees argued. At one point in their deliberations, the jurors sent a question to the judge, asking if “municipal” meant the same thing as “federal.” The judge responded that no, “municipal” referred to a city or town, not the federal government.

The Northwest detention center houses people who are in custody while the federal government seeks to deport them or reviews their immigration status. It can hold up to 1,575 detainees, making it one of the nation’s largest immigration jails, though as of early this month its population was just 216, largely due to the pandemic.

U.S. Immigration and Customs Enforcement requires the company to operate a “voluntary work program” in part to keep the detainees occupied. It requires them to be paid at least $1 per day for work that includes cleaning bathrooms, showers and industrial kitchens; washing and folding laundry; sweeping and buffing floors; preparing and serving food; and cutting hair.

GEO acknowledged it could pay detainees more if it wanted. In 2018 the company made $18.6 million in profits from the facility; it would have cost $3.4 million to pay the minimum wage to detainees.

Despite the broad definition of “employee” in the law, the case is complex. GEO’s contract with ICE requires it to comply with applicable state and local law — which, the state says, includes the Washington Minimum Wage Act.

But other provisions forbid GEO from hiring anyone who doesn’t have legal status in the U.S. “The contract spells it out: The detainees are not employees,” GEO attorney Joan Mell said. “They can’t be.”

In her closing argument, Mell accused the state and detainee advocates of using the lawsuits to attack the immigration detention system “without ever having to go to Congress.” GEO has operated the detainee work program for more than a decade, and the state made no effort to get the company to pay the minimum wage until 2017, amid a flurry of lawsuits Ferguson filed against the Trump administration.

Washington appears to be the only state suing a private detention contractor for not paying minimum wage to immigration detainees. But similar lawsuits have been brought on behalf of immigration detainees in other states, including New Mexico, Colorado and California, seeking to force GEO and another major private detention company, CoreCivic, to pay minimum wage to detainees there.

The Colorado and California cases are pending, but a federal judge rejected the lawsuit brought by former detainees of CoreCivic’s Cibola detention center in New Mexico — a decision upheld by a federal appeals court panel in March.

“Persons in custodial detention — such as appellants — are not in an employer-employee relationship but in a detainer-detainee relationship,” the panel wrote.

In a separate effort, Washington is trying to close the detention center entirely. This spring Gov. Jay Inslee signed a law that would ban for-profit detention centers in the state. GEO has sued to block it.