ORDERS:
FINAL ORDER
STATEMENT OF THE CASE
This
matter comes before the Administrative Law Court (“ALC” or “Court”) pursuant to
the notice of appeal filed by inmate Gerald Carter (“Inmate”), an inmate
incarcerated with the South Carolina Department of Corrections (“SCDC” or
“Department”) since January 14, 1990, after he was convicted of murder. In his
Notice of Appeal, Inmate specifically requests the prevailing wage based on the
holding in Wicker v. S.C. Dep’t of Corr., 360 S.C. 421, 602 S.E.2d 56
(2004). Inmate alleges the Department violated the South Carolina Prevailing
Wage Statute, S.C. Code Ann. § 24-3-430(D) (Supp. 2002). Inmate also states he
“believes that he is entitled to 3 times the prevailing wages and interest on
the amount withheld from him.” Inmate asserts Justice Pleicones’ concurring
opinion in Adkins, et al. v. S.C. Dep’t of Corr., 360 S.C. 413, 602
S.E.2d 51 (2004) to support his position.
DISCUSSION
The
Court's jurisdiction to hear this matter is derived entirely from the decision
of the South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C.
354, 527 S.E.2d 742 (2000). The Court's appellate jurisdiction in inmate
appeals is limited to state created liberty interests typically involving: (1)
cases in which an inmate contends that prison officials have erroneously
calculated his sentence, sentence-related credits, or custody status; and (2)
cases in which an inmate has received punishment in a major disciplinary
hearing as a result of a serious rule violation. Id. However, the South
Carolina Supreme Court recognizes a limited Administrative Law Court
jurisdictional exception “where inmate claims deprivation of property
interest.” Slezak v. SC Dep’t of Corr., 361 S.C. 327, 330, 605 S.E.2d
506, 507 (2004), citing Wicker. This case involves an inmate claiming
deprivation of a property interest. The facts of this case are similar to the
facts in Wicker. Therefore, this Court has jurisdiction over this
appeal.
Prevailing
Wage
Inmate
claims he is entitled to the prevailing wage for the time he worked at WESEW. Wicker makes it clear “that there is nothing in the statutory scheme authorizing the
DOC to pay…a training wage less than the prevailing wage.” Wicker, 360
S.C. at 425, 602 S.E.2d at 58. S.C. Code Ann. § 24-3-430(D) states, “No inmate
participating in the (prison industry) program may earn less than the
prevailing wage for work of similar nature in the private sector.” However,
this section did not become law until July 1, 1995. See S.C. Code Ann. §
24-3-430.
The
problem is the record in this case does not indicate the number of hours Inmate
worked at WESEW, nor the dates Inmate worked at WESEW. The only dates Inmate is
eligible to receive the prevailing wage are from July 1, 1995 (the date the
statute took effect) to November 1995 (the end date of the prison industries
project at WESEW). Inmate is entitled to the difference between the prevailing
wage and any wage paid for any hours worked during this time period.
Unpaid
Wages Times Three
Inmate
claims he is also entitled to three times the full amount of unpaid wages while
working at WESEW. Inmate’s claim is under S.C. Code Ann. § 41-10-80(C) which
appears to be based on Justice Pleicones’ concurring opinion in Adkins.
S.C. Code Ann. § 41-10-80(C) states:
In case of any
failure to pay wages due to an employee as required by Section 41-10-40 or
41-10-50 the employee may recover in a civil action an amount equal to three
times the full amount of the unpaid wages, plus costs and reasonable attorney’s
fees as the court may allow…
The
majority opinion in Adkins clearly rejected Justice Pleicones’
concurrence on this issue, citing S.C. Code Ann. § 24-3-430(F). See S.C. Code
Ann. § 24-3-430(F) and Adkins, 360 S.C. at 419 n.7, 602 S.E.2d at 55
n.7. S.C. Code Ann. § 24-3-430(F) makes it clear that “no inmate compensated
for participation in the (prison industry) program is considered an employee of
the State.” Adkins therefore held that “Inmates have no private civil
cause of action” under 41-10-80. Adkins, 360 S.C. at 419, 602 S.E.2d at
55. As a result, Inmate is not entitled to three times the full amount of
unpaid wages while working at WESEW.
ORDER
IT
IS THEREFORE ORDERED that the Department determine from its records the
number of hours Inmate worked at WESEW from July 1, 1995 through the date the
program ended at WESEW. The Department is then ORDERED to calculate the
wages owed to Inmate at the prevailing wage at the time in question and to pay
Inmate the difference between the wages earned and the wages paid.
IT
IS FURTHER ORDERED that the Department provide proof to this Court that
payment to Inmate has been made.
IT
IS FURTHER ORDERED that this payment be made within thirty (30) days of the
date of this order.
AND
IT IS SO ORDERED.
______________________________
John D. McLeod
Administrative Law Judge
November 21, 2005
Columbia, South Carolina |