Unpaid labor is rampant in ICE facilities. This lawsuit could change that — but it won’t likely be the operators who pay.

Federal Judge John Kane ruled last month that nine plaintiffs can move forward with a class-action lawsuit against private contractor GEO Group over alleged underpaid and forced labor while detained at GEO’s immigration detention facility in Aurora, Colorado. Kane has also certified the approximately 62,000 others who are or have been detained in the facility since 2004 as class members.

Four of the nine plaintiffs filing the suit are currently civilly detained — and employed — by GEO Group in its 1,500-bed Aurora facility. The other five plaintiffs were formerly detained and released in 2014 after stints ranging from three months to more than a year and a half.

Plaintiffs claim that the Aurora facility has a policy of selecting six detainees from each housing “pod” at random every day and requiring them to clean these pods, threatening them with three days of solitary confinement for noncompliance.

The lawsuit also accuses the facility of unjustly profiting from its “voluntary” work program, in which participants perform a variety of jobs, including scrubbing bathrooms, showers, toilets and windows; sweeping, mopping, stripping and waxing floors; providing clerical, barber, and meal services and performing landscaping work for wages of only $1 per day.

GEO Group says that the work program and accompanying pay schedule are set by the federal government, and that several full-time contract monitors are employed to ensure  compliance with ICE guidelines. But attorneys for the plaintiffs say the dollar-a-day program violates Colorado’s minimum wage statute and that requiring housekeeping chores under threat violates the forced labor provision of the federal Trafficking Victims Protection Act. The suit also says that GEO Group was “unjustly enriched” by its pay policies, which “violate principles of justice, equity, and good conscience.”

Low labor costs are part of what makes detention such an attractive business, and facilities nationwide employ similar practices. That means that if the lawsuit is successful, it may inspire similar cases across the country. But experts say that although the unpaid and underpaid labor system is a major profit driver for the detention industry, ending the practice will likely come at the expense of taxpayers, not operators.

“[Operators] may end up paying damages, but it’s not like the government is going to stop detaining people,” says Alex Friedmann, managing editor of Prison Legal News, a publication which advocates for the rights of detained people. If detention facilities have to start paying fair wages, he says, “What they’ll do is simply pass the extra cost onto taxpayers, increase their government contracts to provide for more money.”

Dr. Jacqueline Stevens, who directs Northwestern University’s Deportation Research Clinic, says the protocols used by private prisons and detention centers are fairly standard across the country. Thus, she says, “If attorneys see that these arguments prevail in Colorado, they may feel inclined to bring lawsuits in other jurisdictions. The facts [of the cases] are going to be similar because the conditions of labor are very similar.”

Stevens has long specialized in immigration detention research. She began digging into the issue of underpaid labor in 2009, when a U.S. citizen she knew told her that he was owed about $30 in unpaid wages for work he had completed while wrongfully detained.

After collaborating with attorney Andrew Free, who was also interested in the issue, to understand what a lawsuit might look like, Stevens says “these really amazing lawyers” — Denver attorneys Nina DiSalvo and Brandt Milstein — showed an interest in the case and decided to take it on. Five attorneys, including Free and Milstein, filed the suit against Aurora in October 2014.

Experts say that immigration detention facilities rely on forced and underpaid labor to function. “You couldn’t afford to run a system if you didn’t use inmate labor to do the vast majority of work that needs to be done,” says Friedmann. “Our system of detention generally, and really mass incarceration across the US, only exists because we exploit the labor of the people we lock up.”

Grace Meng, a senior immigration researcher at Human Rights Watch, says that the pending lawsuit could reveal previously unknown information about how private detention facilities operate, because these companies are historically not transparent.

“It would not surprise me if this lawsuit uncovered that a huge part of their business model relied on having unpaid — even $1 a day is essentially unpaid — labor,” she says.  “Through discovery, through the litigation, we may really learn a lot more about these companies than they’ve been unwilling to reveal through standard [Freedom of Information Act] requests,” she says.

The lawsuit states that by relying on detainees to clean and provide other maintenance, GEO Group was able to operate its Aurora facility with only one full-time, paid janitor.

Detainees who are undocumented or who don’t speak English are a particularly vulnerable population, making it easier to exploit them for unpaid or underpaid labor. Some workers, says Meng, volunteer to work for only $1 a day because “they are so desperate to have some money in their commissary.”

When they do volunteer, they may face longer working hours or more shifts than they signed up for. And even if detainees don’t choose to participate in the “voluntary” work program, they have little legal recourse if they are coerced into performing tasks beyond legally allowable chores. Particularly if they are deported, it is unlikely that they will ever seek redress for their unfair treatment or low wages.

Despite the lawsuit, and the subsequent suits that may follow, labor exploitation in immigration detention centers isn’t likely to go anywhere. President Donald Trump has vowed to deport millions of undocumented immigrants from the United States, and to ramp up ICE to do so.

According to reporting done by the Los Angeles Times, one 20-page White House memo released in late January directed Homeland Security officials to nearly double the number of people held in detention to nearly 80,000 per day. Doing so would require a significant increase in the number of detention facility beds currently available.

More beds, says Friedmann, inevitably means more bodies. “It’s a trite phrase, but it remains as true today as it was in the 1980s: If you build it, they will come. If you build the facilities, you have to fill the facilities to make it cost effective.”

Meng acknowledges that just because the Trump administration wants to increase detention beds doesn’t mean it will happen. “They’ll need more money from Congress to do it, and I would hope that Congress would do its job to ask questions, to be skeptical, to ask whether this is the best use of taxpayer money,” she says.

But Friedmann is adamant that whatever the outcome of the lawsuit, the business of detention won’t likely become less attractive for operators.

Even if the suit does succeed and lead to contractual changes — class action suits “typically settle if they’re not tossed out” — he says, “Somebody is going to end up paying more, and that is ultimately going to be taxpayers.”

Photo by Kelsey Ray