SC Administrative Law Court Decisions

Bennie Wicker (Wicker) filed a grievance with DOC challenging the rate of pay for 320 hours of work he performed for prison industries. Wicker argues he was wrongfully paid $.25 for the first 160 hours and $.75 for the next 160 hours. He asserts that he was entitled to pay at $5.25 per hour, the "prevailing wage for work of similar nature in the private sector." S.C. Code Ann. § 24-3-430(D).

DOC raises two positions. First, DOC argues that Wicker's complaint is non-grievable. Second, if grievable, DOC disagrees with Wicker's position on the merits. DOC argues that Wicker voluntarily accepted the "training pay" of $.25 for the first 160 hours and $.75 for the next 160 hours. According to DOC, Wicker was entitled to $5.25 per hour only after the first 320 hours.

After considering the arguments, Wicker's claim is grievable and DOC's decision is reversed. Wicker is entitled to pay at the rate of $5.25 per hour for the first 320 hours of work.

Two issues are presented. First, is Wicker's complaint grievable? Second, is he entitled to $5.25 per hour for the first 320 hours of work performed in the prison industries program?

Generally, DOC's grievance system allows an inmate to submit a formal complaint regarding matters affecting the complaining inmate and for which DOC has the authority to remedy. DOC policy at GA-01.12(OP), Definitions, paragraph 1. However, DOC policy specifically excludes certain matters from the grievance system by characterizing them as "non-grievable." DOC policy at GA-01.12(OP), Specific Procedures, paragraph 8.

DOC argues that Wicker's wage dispute is a "non-grievable" challenge to an institutional job assignment. ⁽¹⁾ I disagree with DOC's position; Wicker does not challenge a job assignment. Indeed, in this case, DOC did not impose a job assignment on Wicker since Wicker volunteered for the position in the prison industries program. Moreover, nothing in the Record on Appeal suggests Wicker challenges a job assignment and nothing indicates he seeks to change an assignment. Rather, he seeks only to be paid the wages required under the prison industries program. Accordingly, Wicker's wage dispute is not a "non-grievable" challenge to an institutional job assignment.

Moreover, Wicker's wage dispute falls under the listed issues considered "grievable" under DOC policy at GA-01.12(OP), Specific Procedures, paragraph 7; the first issue listed is "Department policies/procedures, directives, or conditions which directly affect an inmate." Wicker is directly affected by DOC's arrangement with private industry to pay inmates less than the "prevailing wage for work of similar nature in the private sector" for the first 320 hours of work. Therefore, Wicker's wage dispute is grievable under the agency's grievance system.

The merits issue is whether Wicker is entitled to $5.25 per hour for the first 320 hours of work performed as a part of the prison industries program created under S.C. Code Ann. § 24-3-310 et. seq. I conclude he is so entitled.

Wicker participated in a state sponsored prison industry program in which he had no control over wages and for which an imperative existed that "[n]o inmate participating in the program may earn less than the prevailing wage for work of similar nature in the private sector." S.C. Code Ann. § 24-3-430(D). ⁽²⁾ The duty to accomplish the imperative fell to DOC since Wicker had virtually no ability to police the payment of his wages. Rather, since the "earnings of an inmate . . . must be paid directly to [DOC]," DOC controlled the wages earned by Wicker. See S.C. Code Ann. § 24-3-430(H). In addition, Wicker had no authority to contract for his wages since DOC was required to contract with private parties for the inmate labor. See S.C. Code Ann. § 24-3-430(B) (DOC was authorized to "enter into contracts necessary to implement this program.").

The record reflects that after the initial 320 hours of work, Wicker was paid at the rate of $5.25 per hour. (DOC Staff Memorandum dated May 4, 2000). Thus, the prevailing wage for work of a similar nature in the private sector is $5.25 per hour. ⁽³⁾ Therefore, payment per hour of $ .25 and $ .75 for the first 320 hours of work was improper.

The conclusion that Wicker was improperly paid less than the prevailing wage is supported by the expressed intent of the General Assembly. The General Assembly's intent to benefit the inmates was plainly stated when the prison industries program was created. ⁽⁴⁾ Indeed, the statutory language explicitly states that (among others) the "intent of this article [is] to . . . (4) provide prison industry projects designed to place inmates in a realistic working and training environment in which they are able to acquire marketable skills and to make financial payments for restitution to their victims, for support of their families, and for the support of themselves in the institution." S.C. Code Ann. § 24-3-310(4). Thus, at least one stated intent of the program is to allow inmates to receive compensation to support their families and support themselves while in prison. That legislative intent is fulfilled by requiring that inmates be paid the "prevailing wage for work of similar nature in the private sector."

DOC argues that Wicker was required to complete training at a pay rate of $.25 for the first 160 hours and $.75 for the next 160 hours. However, no legal authority is cited by DOC which purports to authorize such a deviation from the plain requirement of section 24-3-430(D). Indeed, DOC's practice effectively (and improperly) seeks to limit the operation of section 24-3-430(D) to those hours which are worked after the first 320 hours. This type of limitation has been repeatedly denounced by the courts of this State. See, e.g., Mitchell v. Holler, 311 S.C. 406,429 S.E.2d 793 (1993) (Words of a statute should be given their plain and ordinary meaning without resorting to a subtle or forced construction in order to limit or expand the statute's operation.) (emphasis added); TNS Mills, Inc., v. South Carolina Department of Revenue, et al. 331 S.C. 611, 620, 503 S.E.2d 471, 476 (1998) (The Court must presume the legislature did not intend a futile act, but rather intended its statutes to accomplish something.).

It is not the court's place to change the meaning of a clear and unambiguous statute. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). "What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. Therefore, the courts are bound to give effect to the expressed intent of the legislature." Id., quoting Norman J. Singer, Sutherland Statutory Construction § 46.03 at 94 (5th ed. 1992).

The plain language of section 24-3-430(D) requires the prevailing wage for work of a similar nature in the private sector to be paid to inmates participating in the prison industries program. The record shows that Wicker participated in the prison industries program from February 18, 1999 to October 8, 1999, for which section 24-3-430(D) requires that he be paid the prevailing wage of $5.25 per hour.

DOC's decision is reversed. Further, DOC shall pay Wicker back wages in an amount that will compensate Wicker at the rate of $5.25 per hour for Wicker's first 320 hours of labor in the prison industries program.

AND IT IS SO ORDERED.

Dated: August 13, 2001

Columbia, South Carolina

1. DOC policy GA-01.12(OP), Specific Procedures, paragraph 8, Non-Grievable Issues, states that no grievable issue arises when an inmate challenges "an institutional job assignment."

2. South Carolina's "prevailing wages" statute is similar to language found in the Ashurst-Sumners Act, 18 U.S.C. §§ 1761 - 1762. That act prevents the shipment of prisoner-made goods in interstate commerce since it seeks to avoid the unfair competition that is likely to result from the use of cheap labor provided by inmates. However, one exception allows the interstate shipment of inmate-made goods: the goods must be produced as part of a designated pilot project in which inmate workers are paid prevailing wages. § 1761(b)-(c).

3. The federal minimum wage is currently $5.15 per hour, see 29 U.S.C.A. § 206; thus, the prevailing wage in the private sector would have to be at least $5.15 per hour. Additionally, no argument has been made and nothing is in the record before me to suggest that the "prevailing wage for work of similar nature in the private sector" should be the amount authorized under a special certificate of learners. See 29 C.F.R. § 520.408.

4. Certainly, in the absence of an express intent to the contrary, prisoners are not automatically due compensation for their labor. Indeed, prisoners are obligated to work as part of their sentences and compensation exists only by the "grace of the state." McMaster v. State of Minn., 819 F.Supp. 1429, 1438 (D.Minn.1993). The issue in the instant case is not whether an inmate should be paid for his labor; instead, the issue is whether Wicker has been paid all of the wages which the "grace of the state" provides.