Michael Scott v. Baltimore County, Maryland

Courts have been skeptical of Fair Labor Standards Act claims brought by

incarcerated workers, and ours is no exception. In Harker v. State Use Industries,

990 F.2d 131

(4th Cir. 1993), this Court refused to apply the Act to “work performed at a prison

workshop located within the penal facility.”

Id. at 132

. In Matherly v. Andrews,

859 F.3d 264

(4th Cir. 2017), the Court cited “[t]he Harker factors” in concluding that a plaintiff

who was civilly detained as a sexually dangerous person was not entitled to the federal

minimal wage for his “job at FCI Butner.”

Id. at 270, 278

. And in Ndambi v. CoreCivic,

Inc.,

990 F.3d 369

(4th. Cir. 2021), the Court relied on Harker in rejecting a Fair Labor

Standards Act claim brought by immigration detainees for work done “as janitors and in

the library and kitchen” at the detention center.

Id. at 370

As the district court noted, however, this Court “has yet to analyze” whether the Act

applies to “off-site inmate work.” JA 1826. And that is exactly what we have here. The

recycling center was not “behind prison walls.” Harker,

. Equally

important—it was neither a “prison-operated industry,” nor did the recycling center exist

to serve “the prison itself.”

This situation thus falls outside Harker’s “categorical[]”

rule that “work done by inmates behind prison walls for any type of prison-operated

industry or for the prison itself ” is not covered by the Act.

Indeed, the County acknowledges that some incarcerated workers fall within the

Act’s coverage. Recall that detainees participating in work release also leave the County’s

9 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 10 of 26

detention center to perform jobs, before returning to the detention center at the end of the

workday. Some workers go to McDonald’s, for example. The County agrees those work

release participants are “employees,” and that McDonald’s must pay them the minimum

wage and overtime as due under the Act. That concession reflects the commonsense

proposition that the “free-world employer[s]” of “work release” participants must “pay

[the] minimum wage and otherwise comply with the” Act. Reimonenq v. Foti,

72 F.3d 472, 476

(5th Cir. 1996). It also matches Harker’s recognition that “extraordinary

circumstances” can trigger Fair Labor Standards Act “coverage of inmate labor,”

, and our sister circuits’ repeated “rejection of a rule that a prisoner’s labor is at all

times and in all circumstances exempt from the” Act, Danneskjold v. Hausrath,

82 F.3d 37, 40

(2d Cir. 1996). 1

At the same time, we reject Scott’s assertion that Harker’s entire approach is

inapplicable because Harker “was never intended to be applied to incarcerated labor

performed outside of a prison.” Scott Br. 27 (emphasis removed). Harker considered the

same kind of question we must answer now: Is a worker whose freedom is significantly

1 Accord Burrell v. Staff,

60 F.4th 25, 48

(3d Cir. 2023) (incarcerated workers “sufficiently allege that . . . they were employees”); Loving v. Johnson,

455 F.3d 562, 563

(5th Cir. 2006) (“We have held that prisoners not sentenced to hard labor, who worked outside the jail for a private firm, were FLSA employees of the private firm.”); Vanskike v. Peters,

974 F.2d 806, 808

(7th Cir. 1992) (adopting categorical rule akin to this Court’s rule in Harker without “question[ing] the conclusion[] . . . that prisoners are not categorically excluded from FLSA’s coverage simply because they are prisoners”); Hale v. Arizona,

993 F.2d 1387, 1389

(9th Cir. 1993) (en banc) (“While we do not believe that prisoners are categorically excluded from the FLSA, we hold that the inmates in this case [are not covered].”); Henthorn v. Department of Navy,

29 F.3d 682, 686

(D.C. Cir. 1994) (“[W]here an inmate participates in a non-obligatory work release program in which he is paid by an outside employer, he may be able to state a claim under the FLSA[.]”). 10 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 11 of 26

curtailed and whose relationship to the national economy is different from the typical

worker an “employee” under the Fair Labor Standards Act? As this Court did in Ndambi,

we follow “the principles of Harker” in answering the question before us.

990 F.3d at 373

Under Harker, we consider three “factors” in deciding whether a particular detained

worker is covered by the Act. Matherly,

. Although Harker and Matherly

discussed the factors in a different order, we arrange them as we do here because it allows

us to begin with what looks like our previous cases before turning to what looks different.

We start by asking whether the relationship between the workers and their putative

employer had the hallmarks of “a true employer-employee relationship.” Harker,

. We next consider whether the purposes of the Fair Labor Standards Act call for its

application. See

id.

at 133–34. Finally, we reach what turns out to be the critical question

here: whether the putative employer had “a rehabilitative, rather than pecuniary, interest

in” Scott’s and his fellow plaintiffs’ labor.

Id. at 133

; accord Matherly,

(similar).

This Court has concluded that detainees who “have [the] opportunity” to work

“solely at the prerogative of the custodian” “do not deal at arms’ length” with their putative

employer like the typical worker in the national economy. Ndambi,

990 F.3d at 372

(quotation marks removed). Such workers, the Court has explained, “have not made the

bargained-for exchange of labor for mutual economic gain that occurs in a true employer-

employee relationship” and the custodian “wields virtually absolute control over them to a

11 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 12 of 26

degree simply not found in the free labor situation of true employment.” Harker,

We begin with an important consideration favoring the County. Scott offers a series

of reasons why he and his fellow detainees were dealing at arms’ length when choosing to

work at the recycling center, insisting the work “was optional and voluntary” and noting

that the County had to increase pay to motivate incarcerated workers to join the recycling

center detail. Scott Br. 11. In Ndambi, however, this Court rejected an analogous argument

by immigration detainees working in a “voluntary work program.”

990 F.3d at 370

. “As

[the] name suggests,” that “program [was] voluntary.”

But because the workers

participated “solely at the prerogative of [their] custodian,” the Court concluded this factor

cut against application of the Act.

Id. at 372

(quotation marks removed).

True, unlike in Harker, Matherly, and Ndambi, Scott and his fellow workers were

not working inside the detention facility or for a “prison-operated industry.” Harker,

. Perhaps this consideration is not as weighty here, then, as it was in those

cases. At the same time, however, Scott and his fellow detainees could only work at the

recycling center if approved to do so by Department of Corrections (DOC) staff.

That does not, however, end our inquiry. In contrasting the situation before it with

a “true employer-employee relationship,” Harker emphasized the “virtually absolute

control” the state prison exercised over the plaintiffs while they were working in the prison-

operated print shop.

. This observation reflects a recurring concern when

detainees claim to be employees of their “detainer”—that the detainer exercises “too much

control” to be understood as a mere employer. Ndambi,

990 F.3d at 372

(quotation marks

12 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 13 of 26

removed).

Here, by contrast, Scott alleges that someone other than his detainer employed him.

As explained more fully below, Scott does not claim he worked at the place he was detained

or for a business run by his detainer. Instead, Scott asserts he worked at the recycling center,

which was run by DPW. See Part III(B)(3), infra. And that, in turn, starts to make this case

look more like the typical Fair Labor Standards Act case, where the question is whether

the putative employer exercised “enough”—rather than too much—control. Vanskike v.

Peters,

974 F.2d 806, 810

(7th Cir. 1992).

At least when viewed in the light most favorable to the non-moving parties, the

evidence suggests that the recycling center exercised the kind of control typical to an

employment relationship. Although officers from the detention center were present during

work detail shifts, it was recycling center staff—“not . . . [corrections] officer[s]” (JA 975–

76)—who assigned the incarcerated workers’ workstations, set the work schedule,

provided safety and work equipment, and kept attendance records. Such facts are consistent

with the level of control exercised by a typical employer. See, e.g., Salinas v. Commercial

Interiors, Inc.,

848 F.3d 125

, 150–51 (4th Cir. 2017) (worker more likely to be employee

where putative employer is “daily supervis[or]” and “provide[s] all of the materials,

supplies, tools, and equipment” used in work). The County argues that corrections officers

also had some supervisory role over work detail participants. But at this stage we must

accept Scott’s characterization of “unarmed, retired” corrections officers who “spent their

time feeding birds as opposed to supervising inmates during bathroom breaks.” Scott

Br. 41.

13 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 14 of 26

A comparison between detainees on work release (who the County admits are

employees) and those on work detail (who it insists are not) also confirms this factor does

not cleanly favor the County. When a work release participant’s shift ends at McDonald’s,

that person is “not free to walk off the job site and look for other work,” nor do they “leave

DOC supervision.” Harker,

. Instead, work release participants are “only

allowed to be out of the facility for 12 hours a day” (JA 317), must “travel from [the

detention center] to [their] work site and back again by the shortest route and in the least

amount of time” (JA 1734), cannot “leave [their] place of employment without permission

from designated [corrections] staff ” (id.), and cannot “change or resign from [their]

employment” without “permission from” DOC (id.). If DOC’s exercise of so much control

over detainees who are on work release does not bring such workers outside the Act, it

must be because the proper focus of attention is the control exerted by the putative

employer. For work release participants, that is a business like McDonald’s. For Scott and

those he represents, it was DPW. See Part III(B)(3).

To sum up: Because Scott needed DOC’s approval to work at the recycling center,

he did not bargain at arms’ length with his putative employer under this Court’s precedent.

At the same time, however, there are—at minimum—genuine disputes of material fact that

bear on whether Scott’s putative employer exercised so much control as to prevent Scott

from qualifying as an employee. Especially where “no single factor is dispositive,”

McFeeley,

825 F.3d at 241

, this factor alone is not enough to win this case for the County.

We next ask whether the purposes of the Act call for covering workers like Scott.

14 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 15 of 26

See Matherly,

; Harker, 990 F.2d at 133–34. Here too, our analysis points

in both directions, but this time it tends to favor Scott.

The Fair Labor Standards Act’s overriding purpose is to ensure “the minimum

standard of living necessary for health, efficiency, and general well-being of workers.”

29 U.S.C. § 202

(a); see Harker,

(quoting this provision). Scott insists that

purpose is implicated here because he and his fellow incarcerated workers needed the Act’s

protection. As one of Scott’s amici notes, “[i]ncarcerated people are forced to purchase

food, hygiene, and other items to compensate for grossly inadequate provisions” and must

also pay “to maintain family relationships.” ACLU Amicus Br. 24–28.

That may well be true, but this Court’s precedent forecloses such a theory for why

the Act should apply here. Indeed, Ndambi rejected an almost identical argument, holding

that “any potential inadequacy of conditions is not appropriately remedied by applying the

FLSA wholesale to detainees.” Ndambi,

990 F.3d at 373

. If the purposes of the Act call for

its application here, it cannot be to benefit Scott and those he represents.

But the Act aims to protect the “general well-being of ” all workers—not just those

seeking coverage in a particular case.

29 U.S.C. § 202

(a). It does so by, among other things,

“preventing unfair competition in commerce,” which happens when employers who “pay

the minimum wage” are forced to compete against those who do not. Harker,

990 F.2d at 134

; see

29 U.S.C. § 202

(a)(3). Such competition creates “a general downward pressure

on wages” and explains why the Act’s strictures must “be applied even to those [workers]

who would decline its protections.” Tony & Susan Alamo Found. v. Secretary of Lab.,

471 U.S. 290, 302

(1985). A worker who would happily labor for free because she is

15 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 16 of 26

independently wealthy or has the world’s best boss cannot opt out of the Act if economic

realities reveal she is a covered employee. And this fact, in turn, confirms the Act is

concerned not only with the individual workers claiming coverage (here, Scott and those

he represents) but also with the effect that the work they do has on other workers and

businesses.

Those concerns are directly implicated here, and they set this case apart from those

this Court has already considered. As noted previously, the Court’s past cases all involved

work done by detained people inside their detention facility. See Harker,

990 F.2d at 132

;

Matherly,

859 F.3d at 270

; Ndambi,

990 F.3d at 370

. This case, in contrast, involves work

done at an offsite location where detained and non-detained workers both worked. That

distinction makes a difference.

For one thing, the fact that this work was done outside the prison walls impacts the

risk of unfair competition to other businesses. The nature of work done inside a prison

constrains its potential impact. Usually, “[t]he opportunity” to do that work “is open only

to prisoners.” Danneskjold,

82 F.3d at 43

. Not only is the labor pool limited, but a business

seeking to make goods in or provide services from inside a prison must conduct the

enterprise within the constraints inherent to the carceral environment. See, e.g., Sandin v.

Conner,

515 U.S. 472

, 484–86 (1995) (describing the “significant amount[] of ‘lockdown

time’” in prison as an “ordinary incident[] of prison life”). Those realities limit the extent

to which output from work done inside prisons can affect commerce outside of prisons.

Not so when you run your operation in the free world but import cheap labor from

a prison. As County officials acknowledged, there were “third part[ies] like [W]aste

16 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 17 of 26

[M]anagement”—a private corporation that does not use incarcerated labor—who “had

contracts with many jurisdictions” to provide the same kind of services the County was

providing for itself at the recycling center. JA 588. Indeed, the County operated the

recycling center “so [it would not] have to go to Waste Management.” JA 643. And it could

make that choice because it was cheaper for the County to run the recycling center itself

than it would have been to use Waste Management. The fact that the County also sorted

recycling for two other counties and was trying to secure business from four more only

confirms the potential competitive unfairness to private providers.

The County’s responses to this point are unpersuasive. For example, the County

insists there is no evidence it “sought to ‘undersell’ private recyclers in selling recycled

material.” County Br. 49. But even assuming that is true, the County’s artificially low labor

costs meant it could provide recycling services more cheaply than private providers,

making it more difficult for private providers to secure business they otherwise might have

won. Nor does it help the County’s case to argue that operating a recycling center is a

“recognized government function.” County Br. 49. State and local governments do all sorts

of things that might otherwise be “left in private hands” and the Supreme Court long ago

jettisoned the view that they are immune from the Fair Labor Standards Act when

performing government functions. Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528

, 546–47 (1985). Instead, the Act applies to “virtually all state and local-government

employees.”

Id. at 533

That brings us to the second reason it matters that this work was done outside the

detention facility’s walls: It also increased the risk of “unfair competition” for free workers.

17 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 18 of 26

Carter v. Dutchess Cmty. Coll.,

735 F.2d 8, 13

(2d Cir. 1984). To be sure, some jobs done

inside prisons by incarcerated workers would otherwise be filled by non-incarcerated

workers. See, e.g., Ndambi,

990 F.3d at 374

(noting that possibility in relation to janitorial,

kitchen, library, and barbershop work). But for reasons that echo those discussed above,

the possibility of unfair competition is greater—and the Act’s overriding purpose more

clearly implicated—when incarcerated workers fill jobs outside a detention facility.

That risk was realized here, too. The record contains evidence that the County

sought to “get rid of the temp workers” at the recycling center—thereby eliminating what

would have been at least minimum wage paying jobs—and thus “decrease costs” by getting

“more consistent inmate[] numbers” to do the work instead. JA 927. Perhaps the best proof

that the use of incarcerated workers kept other workers from getting these jobs is that after

the County stopped using incarcerated workers at the onset of the COVID-19 pandemic

(and this lawsuit), it hired more temporary workers for the recycling center and paid them

the minimum wage. 2

2 Harker also reasoned that the purposes of the Act did not warrant its application “to work done by inmates behind prison walls for any type of prison-operated industry” because another federal statute—the Ashurst-Sumners Act—“dealt more specifically” with the unfair competition risks posed by “prison-made goods.” Harker, 990 F.2d at 134–35. Perhaps recognizing that we are not dealing with “prison-made goods,” the County’s brief barely mentions this aspect of Harker, relegating it to a brief reference in a single footnote. See County Br. 46 n.12. One other possible reason for the County’s reluctance to emphasize Ashurst-Sumners: if that law applied to the sort of work being done here, the County may have spent years violating it by selling bundles of recycled material produced using incarcerated labor.

18 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 19 of 26

We arrive now at the last Harker factor—whether the “[i]nmates perform work . . .

to turn profits for their supposed employer” or instead “as a means of rehabilitation and job

training.” Harker,

; accord Matherly,

(framing the factor

in the same way).

We are confronted immediately with a dispute about who Scott’s “supposed

employer” is and thus whose “interest” in Scott’s labor matters. Harker,

The County insists that, legally speaking, there is no such thing as DPW or DOC and thus

we must consider the interests of Scott’s “custodian”—the County as a whole. County

Br. 29, 33. The district court appears to have adopted this view, relying heavily on DOC’s

goals in sending incarcerated workers to the recycling center in concluding that the Act did

not apply. In contrast, Scott asserts that it is DPW’s interests in using inmate labor that

matter here.

We conclude Scott has the better argument. First, Scott’s proposed approach is most

consistent with Harker. In Harker, this Court asked whether State Use Industries—an

“organization [within the Maryland Department of Corrections] created by the Maryland

legislature to meet the rehabilitative needs of inmates”—“ha[d] a rehabilitative, rather than

pecuniary, interest in [the plaintiff ’s] labors.” 990 F.2d at 132–33. The Court did not ask

whether the facility detaining the plaintiff (or the State of Maryland writ large, of which

the facility and prison operated industry were both a part) had such an interest. See

id.

That,

in turn, suggests that the relevant question is why DPW was using inmate labor, not why

DOC was allowing it to happen.

19 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 20 of 26

Second, treating DPW’s interests as the relevant ones fits best with the

“uncontroversial” fact that inmates on “work release” are employed by their private

employers, not the County. County Br. 28. The County asserts, and the district court

concluded, that Scott’s claims fail because DOC (or the County via DOC) had a

rehabilitative purpose in sending the incarcerated workers to the recycling center. But if

that argument is right, it is hard to see why people on work release are covered by the Act.

DOC does not allow work release participants to go to McDonald’s to make McDonald’s

more profitable; it does so to “prepare the inmates for reentry into the community.” JA 705.

If DOC’s rehabilitative aim was enough to evade coverage under the Act, work release

participants at McDonald’s would seemingly not be covered, either.

Third, the County’s response—that the McDonald’s example involves a “third-party

employer” but this situation does not, County Br. 28—merely assumes the County is right

that the only thing that matters is what legal entity Scott had to name as the defendant in

his complaint. That assumption improperly elevates form over substance. “[E]conomic

reality rather than technical concepts is to be the test of employment.” Goldberg v.

Whitaker House Coop., Inc.,

366 U.S. 28, 33

(1961) (quotation marks removed).

The Department of Labor’s implementing regulations address a similar issue and

demonstrate the flaw in the County’s argument. One way an employee can show

entitlement to a minimum wage is to prove they are “employed in an enterprise engaged

in commerce or in the production of goods for commerce.”

29 U.S.C. § 206

(a) (emphasis

added). The Department’s regulations make clear that an “enterprise is not necessarily

coextensive with the entire business activities of an employer” and that “a single employer

20 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 21 of 26

may operate more than one enterprise.”

29 C.F.R. § 779.203

; see

29 C.F.R. § 779.204

(c)

(“In some cases one employer may operate several separate enterprises.”). We need not

and do not decide whether DPW is a separate enterprise from DOC or any other part of the

Baltimore County government. We simply point out that the Act’s coverage does not turn

on the formal legal label affixed to the putative employer.

Finally, the County’s “the County is the County is the County” argument offers no

persuasive way to distinguish a recent and closely analogous case from the Third Circuit.

In Burrell v. Staff,

60 F.4th 25

(3d Cir. 2023), that court held civil detainees sent to sort

trash at a recycling center had sufficiently alleged they were employees under the Act.

See

id. at 31, 48

. The recycling center was run as a “joint public-private venture” by a

municipal authority and the “private corporation” to whom the government had

“outsource[d]” its recycling operation.

Id. at 31

(second and third quotes), 45 (first quote).

The County insists that the presence of a “private business[]” in Burrell

distinguishes it from this case, County Br. 29, but we do not see how we could reject Scott’s

claim while leaving open the possibility that claims like those in Burrell might succeed.

For one thing, the County ignores the “public” part of the “public-private venture” in

Burrell—the court noted the government entity may have been setting the detainees’ pay

and was receiving an “economic benefit” insofar as it reduced the labor costs the

government would have had to otherwise pay. 60 F.4th at 45–46. And even more striking,

Burrell held the government entity itself might be liable as a joint employer. See

id. at 46

To be sure, Burrell is not quite on all fours, and we would have to follow this Court’s

precedent even if it required us to reach a result that conflicted with Burrell. See McMellon

21 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 22 of 26

v. United States,

387 F.3d 329, 333

(4th Cir. 2004) (en banc) (“[O]ne panel cannot overrule

another.”). But we try to avoid creating circuit splits, and the County identifies no

persuasive way to distinguish Burrell.

Having determined it is DPW’s interest in Scott’s employment that matters, we turn

to a second legal question: To what extent must DPW have been motivated by rehabilitative

aims (rather than economic goals) in deciding to use incarcerated workers? Though it

resists saying so directly, the County repeatedly suggests that any quantum of genuine

rehabilitative purpose takes Scott and his fellow detained workers outside the Fair Labor

Standards Act. The district court appears to have adopted that view, stating that even

though the “[u]ncontroverted evidence” showed the work release program “served both

economic and rehabilitative purposes,” it was enough that there was “some rehabilitative

purpose of the work detail program.” JA 1831 (emphasis added). In contrast, Scott argues

the appropriate inquiry considers the “primary” purpose during the relevant period. Scott

Br. 38.

Here too, we agree with Scott. To begin, none of this Court’s previous decisions

about detainee labor address this question. In Matherly, the Court noted that “there [was]

no indication that [the plaintiff] [was] working to turn a profit for” his putative employer.

(emphasis added). And in Harker, the Court stated the Act did not apply

because the prisoners “perform[ed] work . . . not to turn profits for their supposed

employer, but rather as a means of rehabilitation and job training.”

(emphasis added). The County would have us rewrite that sentence to say that the Act does

not apply even when inmates “perform work . . . to turn profits for their supposed employer,

22 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 23 of 26

[so long as they also do so] as a means of rehabilitation and job training.” Whatever the

merits of that rule, it would be an extension of Harker, not a mere application of its holding.

True, Ndambi holds that the fact that a putative employer is making money—or

even is a profit-seeking entity—does not automatically trigger coverage under the Act.

See

990 F.3d at 374

. But the question here is not why the recycling center exists (which

would be the analogous question to the one the Court considered in Ndambi): it is why the

recycling center was using incarcerated labor and whether any degree of rehabilitative

purpose is enough to avoid coverage. And, like Harker and Matherly, Ndambi does not

purport to answer that question.

Fortunately, other Fair Labor Standards Act cases have considered the multiple-

purposes question. For example, courts have long needed to distinguish between employees

and trainees, employees and volunteers, and employees and interns—all situations where

the putative employer might have more than one interest at play. To be clear, we do not

import the law governing those separate relationships into the prison context wholesale,

and we emphasize that here, as elsewhere, we must examine “the particular working

relationship, the particular workplace, and the particular industry.” McFeeley,

825 F.3d at 241

. But what is noteworthy is that, in each context, courts apply a “principal” or “primary”

purpose analysis. Isaacson v. Penn Cmty. Servs., Inc.,

450 F.2d 1306, 1310

(4th Cir. 1971)

(first quote) (volunteers); Harbourt v. PPE Casino Resorts Md., LLC,

820 F.3d 655, 659

(4th Cir. 2016) (second quote) (trainees); see also Glatt v. Fox Searchlight Pictures, Inc.,

811 F.3d 528, 536

(2d Cir. 2016) (interns). We think the same approach is the right one

here.

23 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 24 of 26

Finally, we emphasize that the time frame that matters is that for which Scott seeks

to recover back pay. The record suggests DPW began using incarcerated workers decades

in the past, but why it made that choice long ago is not the relevant question. Instead, the

question here is whether it had a sufficiently rehabilitative purpose “throughout the relevant

period.” Herman v. RSR Sec. Servs. Ltd.,

172 F.3d 132

, 140 (2d Cir. 1999).

To once again sum up: The question under this Harker factor is whether DPW’s

principal or primary purpose for using incarcerated workers at the recycling center during

the time frame at issue was for “rehabilitation and job training.” Harker,

If the answer is no, this factor cuts strongly in Scott’s favor.

The district court, of course, did not have before it our analysis of these issues when

it considered the County’s motion for summary judgment. For that reason, it is

understandable that the court’s framing of the relevant legal standards differed from those

set out in this opinion in various important respects. True, the de novo standard of review

means we could apply those standards ourselves to decide whether to affirm the district

court’s grant of summary judgment to the County. See Pendleton v. Jividen,

96 F.4th 652, 658

(4th Cir. 2024). But “we remain mindful that we are a court of review, not of first

view” (id. (quotation marks removed)), and we think it better to follow our usual practice

of allowing the district court to conduct the required analysis in the first instance. Such an

approach seems especially appropriate here given the inherently fact-intensive nature of

the relevant inquiry. To be sure, the “ultimate conclusion” about whether a given worker

is an employee under the Act presents “a legal question.” Schultz v. Capital Int’l Sec., Inc.,

24 USCA4 Appeal: 23-1731 Doc: 65 Filed: 05/08/2024 Pg: 25 of 26

466 F.3d 298, 304

(4th Cir. 2006) (emphasis added). But many of the subsidiary questions

that guide that analysis are, unsurprisingly, “factual question[s].” Tony & Susan Alamo

Found.,

471 U.S. at 299

. So while we do not foreclose the possibility of renewed summary

judgment proceedings on remand, we emphasize that any factual disputes—including those

bearing on the degree of control exercised at the recycling center and DPW’s primary

purpose in using incarcerated workers—must be viewed in the light most favorable to the

non-moving party.

* * *

Congress may well not have had workers like Scott in mind when it enacted the Fair

Labor Standards Act. “But . . . it is ultimately the provisions of our laws rather than the

principal concerns of our legislators by which we are governed.” Oncale v. Sundown

Offshore Servs., Inc.,

523 U.S. 75, 79

(1998). And “the fact that a statute can be applied in

situations not expressly anticipated by Congress does not demonstrate ambiguity. It

demonstrates breadth.” Pennsylvania Dep’t of Corrs. v. Yeskey,

524 U.S. 206, 212

(1998)

(quotation marks removed). These observations ring especially true for this statute—one

“whose striking breadth” courts have long recognized. Nationwide Mut. Ins. v. Darden,

503 U.S. 318, 326

(1992).

We reiterate this Court’s previous holdings that “work done by inmates behind

prison walls for any type of prison-operated industry or for the prison itself ” is

“categorically” outside the Fair Labor Standards Act. Harker,