Lawsuit: Former prisoner seeks more than 50 cents a day in worker’s comp

A former Nevada inmate injured while working a prison job is suing the state for only paying him an estimated 50 cents a day in worker’s compensation, even after he was released from prison.

The unusual case of Darrell White was heard Tuesday before a three-judge panel of the Nevada Supreme Court in Las Vegas, with his attorneys arguing that Nevada’s constitutionally-set minimum wage requirement should supersede some of the existing rules on inmate pay and compensation for injuries sustained while on the job.

Justices appeared sympathetic to White, who appeared in person in Las Vegas on Tuesday during oral arguments, but an answer to his lingering quandary could take even longer, given concerns of insufficient briefings raised by members of the court on what they considered to be the primary question — whether constitutionally set minimum wage should apply to inmates injured while on the job and later released from prison, a situation that members of the court said didn’t seem right.

“You have inmates fighting fires on behalf of the state earning presumably 50 cents a day, where somebody’s seriously burned or injured and they get out and you’re going to give them 50 cents a day, I mean there’s something about that seems to kind of offend or shock the conscience a bit,” Justice Lidia Stiglich said during the proceedings.

In December 2015, White was incarcerated in Nevada and agreed to participate in a voluntary work program with the state’s Division of Forestry, in exchange for a nominal wage ($18 to $22 a month) and time off his sentence. According to court documents, White fractured a finger on his right hand while stepping off a “porta potty trailer and hitting his right hand on the bumper of the crew bus.”

He was seen by a medical doctor within a day, given a splint and later filed a worker’s compensation claim for the fractured finger. White was released from prison in July of 2016, and within a month was recommended for surgery in a follow-up medical visit. He was taken off work, but informed in September that his assessed “average monthly wage” under the worker’s comp claim would be tied to his income as an inmate; $23.93 a month, or a daily rate of 50 cents.

White’s attorney, Travis Barrick, appealed the decision to an administrative court judge and a District Court judge and lost both cases before appealing to the state’s Supreme Court. Barrick, who spent part of his opening statement mentioning recovery of attorney’s fees, said the state’s arguments technically followed the law but still resulted in an unfair conclusion.

“We’re here today because there’s a moral issue behind the persistent denial of the respondents to give Mr. White what he was due,” Barrick said. “The arguments by the respondents are cogent, linear, easy to follow, backed up with all sorts of case law. But the result that they’re defending is absurd.”

Neither Barrick nor the justices disputed portions of state law and regulations that governed the treatment of White; worker’s compensation is typically based on the wage at the time of injury, and state regulations that define wages for inmates and what they can recover through worker’s compensation if injured on the job.

The state’s Supreme Court has already upheld the ability of the state to set sub-minimum wages for incarcerated persons, stemming from a case decided in 1986. Nevada voters approved a constitutional change in 2006 setting a minimum wage floor for employers in the state.

Daniel Schwartz, an attorney representing the Division of Forestry, used that case to argue several points, including that White technically did not have standing to bring the case forward, that the state was not considered an “employer” subject to minimum wage laws, and that the definition of wages under administrative code precluded inmates from considering room and board and time reduced from their sentence as “benefits” that they could recover under worker’s compensation. 

Schwartz also argued that the work program offered to White and other inmates had other benefits, beyond the wages of 50 cents a day.

“At least in my humble opinion, what we’re doing is putting too much emphasis on the amount of money that this inmate worker puts in their pocket, and not the other benefits that come along with it,” he said during the oral arguments. “This is a voluntary program. It’s not slavery or involuntary servitude. It’s a voluntary program that the inmate workers do because they carved time off their sentence.”

That left the “only remaining argument,” as Justice James Hardesty called it, the question of whether the entire statutory scheme violated Nevada’s constitutionally required minimum wage — something Hardesty scolded both Barrick and Schwartz for not including in their briefs.

“Quite frankly, this is very disconcerting that we’re making this stuff up as we go,” he said, adding that he may require both sides to submit supplemental briefs before the court makes a decision.

Use of low-wage prison labor in several other states, including California, have come under fire as exploitative, especially in the context of fighting fires. California employed more than 2,000 volunteer inmates in 2018 to fight various wildfires throughout the state, paying them $2 a day and $1 an hour when directly fighting fires.   

According to the non-profit Prison Policy Initiative, eight states — Alabama, Arkansas, Florida, Georgia, Mississippi, Oklahoma, South Carolina and Texas — do not pay inmates for their labor in government-run facilities. The national average wage for inmate labor is 63 cents an hour, though rates vary on the types of employment.

According to the Nevada Department of Corrections, White has been charged with at least four crimes since 1995, including assault with a deadly weapon, robbery and conspiracy to commit a violent crime.