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Staten v. The Geo Group Inc.

United States District Court, W.D. Washington, Tacoma

August 6, 2019

STATE OF WASHINGTON, Plaintiff,
v.
THE GEO GROUP, INC., Defendant.

          ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         This 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 file herein.

         This 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 respects.

         I. RELEVANT FACTS AND PROCEDURAL HISTORY

         A. FACTS

         GEO is 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.

         Under 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.

         Language in the 2002 Contract between GEO and ICE is different than that used in the 2009 or 2015 contracts as provided below.

         2002 CONTRACT

         Under 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.

         Under 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 detainee volunteers.
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 or responsibilities.

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.

         2009 CONTRACT and 2015 CONTRACT

         The 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).

         The 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 Determination.

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.

         Under 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 regulations.
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 ...

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