United States District Court, W.D. Washington, Tacoma
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
J. BRYAN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on The GEO Group Inc.'s
(“GEO”) Motion for Summary Judgment against the
State of Washington (Dkt. 245) and the State of
Washington's Motion for Summary Judgment on Minimum Wage
Act Claim and Defendant The GEO Group, Inc.'s Preemption
Defense (Dkt. 251). The Court has considered the pleadings
filed in support of and in opposition to the motions and the
case arises out of GEO's alleged failure to compensate
immigration detainees at the Northwest Detention Center
(“NWDC”), a private detention center, in accord
with the Washington Minimum Wage Act (“MWA”).
Dkt. 1. The parties now file cross motions for summary
judgment. Dkts. 245 and 251. For the reasons provided below,
GEO's motion (Dkt. 245) should be denied and the
State's motion (Dkt. 251) should be granted as to
GEO's preemption defense and denied in all other
RELEVANT FACTS AND PROCEDURAL HISTORY
a private corporation that has owned and operated the NWDC, a
1, 575-bed detention facility in Tacoma, Washington, since
2005. Dkt. 156, at 8-9. GEO operated and still operates the
NWDC based on a series of contracts with the U.S. Immigration
and Customs Enforcement (“ICE”). Dkts. 16-2, and
19. The first contract, contract ALC-2-C-0004, was signed by
the company GEO acquired in 2002 (“2002
Contract”) and applied to GEO's provision of
services to ICE in 2005. Dkt. 246-1, at 1-137. Starting on
October 24, 2009, GEO operated the NWDC pursuant to ICE
contract HSCEDM-10-00001 (“2009 Contract”). Dkt.
246-2. From September 28, 2015 to the present, GEO has
operated the NWDC under ICE contract HSCEDM-15-00015
(“2015 Contract”). Dkt. 246-3, at 1-203.
these contracts, GEO provides “detention management
services including the facility, detention officers,
management personnel, supervision, manpower, training
certifications, licenses . . . equipment, and supplies”
for immigration detainees awaiting resolution of immigration
matters. See e.g. Dkt. 246-3, at 45.
in the 2002 Contract between GEO and ICE is different than
that used in the 2009 or 2015 contracts as provided below.
the 2002 Contract, a detainee is defined as “[a]n
individual confined within the facility under the authority
of [the ICE];” and an employee “refers to a
person employed by the contractor.” Dkt. 246-1, at 18.
The 2002 Contract provides that, “[s]ubject to existing
laws, regulations Executive Orders and other provisions of
this contract, aliens unauthorized to be employed in the
United States shall not be employed by [GEO] . . . to work
on, under or with this contract.” Dkt. 246-1, at 111.
the heading “Detainee Labor, ” the 2002 Contract
provides: “[GEO] shall provide work opportunities for
detainee volunteers subject to the approval of ICE.”
Dkt. 246-1, at 46. It notes that:
1. [GEO] may solicit volunteers. The number and activities of
such volunteers shall be controlled and approved by
[ICE's Contracting Officer's Technical Representative
“COTR”)] prior to the assignment of the
activities. . .
2. [GEO] remains fully responsible to perform all services
required under this contract with neither interruption nor
diminishment of service regardless of the availability of
3. Creation of work opportunities is viewed primarily as a
benefit to [ICE] and the detainees in custody. It should not
be considered by [GEO] as an opportunity to diminish services
Dkt. 246-1, at 46. The 2002 Contract's COTR was
“designated to coordinate the technical aspects of [the
contract] . . . however, he [was] not [authorized] to change
any terms and conditions of the resultant contract, including
price.” Dkt. 246-1, at 107.
CONTRACT and 2015 CONTRACT
2009 Contract and 2015 Contract require that GEO comply with
all “applicable federal, state and local labor laws,
” and the Illegal Immigration Reform and Immigrant
Responsibility Act. Dkts. 246-2, at 19 and 58; 246-3, at 46
and 52. They further provide that “[s]hould a conflict
exist between any of these standards, the most stringent
shall apply.” Dkt. 246-2, at 58 and 246-3, at 52. Both
contracts require that GEO perform all services in accordance
with the applicable ICE Performance-Based National Detention
Standards (“PBNDS”), and other standards. Dkt.
246-2, at (applying ICE 2008 PBNDS) 246-3, at 45 (applying
ICE 2011 PBNDS).
2009 Contract and 2015 Contract define a “contractor
employee” as an “employee of a [GEO] hired to
perform a variety of detailed services under this contract.
Dkts. 246-2, at 51 and 246-3, at 47. They define a detainee
is “any person confined under the auspices and the
authority of any federal agency. Many of those being detained
may have substantial and varied criminal histories.”
Dkts. 246-2, at 51 and 246-3, at 47. Under the heading
“Minimum Personnel Qualification Standards, ” the
2009 Contract and the 2015 Contract provide that:
[GEO] shall agree that each person employed by [GEO] shall
have a social security card issued and approved by the Social
Security Administration and shall be a United States citizen
or a personal lawfully admitted into the United States for
permanent residence, have resided in the U.S. for the last
five years . . . possess a high school diploma or equivalent
(GED), and obtain a favorable Suitability for Employment
Dkts. 246-2, at 69 and 246-3, at 63. They further provide
that “[s]ubject to existing law, regulations and/or
other provisions of this contract, illegal or undocumented
aliens will not be employed by [GEO] or on this
contract.” Dkt. 246-2, at 77 and 246-3, at 71.
the heading “Manage a Detainee Work Program” the
2009 Contract and 2015 Contract require that,
“[d]etainee labor shall be used in accordance with the
detainee work plan developed by [GEO], and will adhere to the
ICE PBNDS on Voluntary Work Program”
(“VWP”). Dkt. 246-2, at 89 and 246-3, at 82.
While the ICE 2008 PBNDS (applicable to the 2009 Contract)
provided that the VWP “compensation is $1 a day,
” (available online at
http://www.ice.gov/detention-standards/2008/ (last accessed
Aug. 5, 2019), under the ICE 2011 PBNDS (applicable to the
2015 Contract) on the VWP, “the compensation is at
least $1.00 (USD) per day” (Dkt. 253-14, at 4). The
2009 Contract and the 2015 Contract further provide:
The detainee work plan must be voluntary, and may include
work or program assignments for industrial, maintenance,
custodial service or other jobs. The detainee work program
shall not conflict with any other requirements of the
contract and must comply with all applicable laws and
Detainees shall not be used to perform the responsibilities
or duties of an employee of [GEO]. Detainees shall not be
used to perform work in areas where sensitive documents are
maintained . . .
Appropriate safety/protective clothing and equipment shall be
provided to detainee workers. Detainees shall not be assigned
work that is considered hazardous or dangerous. . .
It will be the sole responsibility of ICE to determine
whether a detainee will be allowed to perform on voluntary
work details ...