United States District Court, D. Colorado
ALEJANDRO MENOCAL, MARCOS BRAMBILA, GRISEL XAHUENTITLA, HUGO HERNANDEZ, LOURDES ARGUETA, JESUS GAYTAN, OLGA ALEXAKLINA, DAGOBERTO VIZGUERRA, and DEMETRIO VALEGRA, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
THE GEO GROUP, INC., Defendant
[Copyrighted Material Omitted]
For Alejandro Menocal, Marcos Brambila, Grisel Xahuentitla, Hugo Hernandez, Lourdes Argueta, Jesus Gaytan, Olga Alexaklina, Dagoberto Vizguerra, Demetrio Valerga, on their own behalf and on behalf of all others similarly situated, Plaintiffs: Alexander Neville Hood, LEAD ATTORNEY, Towards Justice-Denver, Denver, CO; Andrew Hess Turner, LEAD ATTORNEY, Buescher, Kelman & Perera, P.C., Denver, CO; Hans Christopher Meyer, LEAD ATTORNEY, Meyer Law Office, P.C., Denver, CO; Robert Andrew Free, R. Andrew Free Law Office, Nashville, TN; Brandt Powers Milstein, Milstein Law Office, Boulder, CO.
For The GEO Group, Inc., Defendant: David R. DeMuro, Shelby Anne Felton, Vaughan & DeMuro-Denver, Denver, CO.
MEMORANDUM OPINION AND ORDER
John L. Kane, Senior United States District Judge.
This matter comes before the Court on Defendant's Motion to Dismiss (Doc. 11). For the reasons that follow, the motion is GRANTED in part and DENIED in part.
Plaintiffs are current and former detainees at the Aurora Facility, a private, for-profit immigration detention facility owned and operated by defendant GEO Group in Aurora, Colorado under contract with the Federal government. Doc. 1 at p.1. Plaintiffs allege that detainees participate in a " Voluntary Work Program" at the facility where they perform tasks such as maintaining the on-site medical facility, doing laundry, preparing meals, and cleaning various parts of the facility for compensation of $1 per day. Doc. 1 ¶ ¶ 1, 28. Plaintiffs also allege that each day, six randomly selected detainees (whether they participate in the Voluntary Work Program or not) are required to clean the facility's " pods" without compensation under threat of solitary confinement. Doc. 1 ¶ ¶ 5-6. Plaintiffs bring three claims. First, Plaintiffs allege that the Voluntary Work Program violates the Colorado Minimum Wage Order (" CMWO" ) because Plaintiffs are paid $1/day instead of the Colorado minimum wage. Doc. 1 at ¶ ¶ 40-52. Second, Plaintiffs allege that forcing detainees to clean their living areas under threat of solitary confinement violates the Trafficking Victims Protection Act's (" TVPA" ) prohibition on forced labor. Doc. 1 at ¶ ¶ 69-85. Third, Plaintiffs allege that the Defendant was unjustly enriched through the operation of the Voluntary Work Program. Doc. 1 at ¶ ¶ 101-107.
Defendant has moved to dismiss all three of Plaintiffs' claims. First, Defendant argues that it is not an " employer," and that the detainees are not " employees," within the meaning of the CMWO. Doc. 11 at 5-11. Second, Defendant argues that the TVPA does not apply to immigration detainees. Id. at 11-15. Finally, Defendant argues that Plaintiffs' unjust enrichment claim should be dismissed as duplicative of their claim for violation of the CMWO. Id. at 15. In its reply brief, Defendant also asserts that Plaintiffs' claims are barred by the government contractor defense and are preempted by the McNamara-O'Hara Service Contract Act (" SCA" ). Doc. 18 at 5-8. Plaintiffs sought and were granted leave to file a sur-reply responding to these additional arguments. See Doc. 21.
I. Whether the Parties Are Subject to the Colorado Minimum Wage Order
a. Whether Plaintiffs are Employees Under the CMWO
The CMWO defines " employee" as " any person performing labor or services for the benefit of an employer in which the employer may command when, where, and how much labor or services shall be performed." 7 Colo. Code Regs. 1103-1:2. Defendant argues that prisoners are not " employees" under the Fair Labor Standards Act (" FLSA" ), and that similarly the CMWO was not intended to be extended to those working in government custody. Doc 11 at 7-11; see Alvarado Guevara v. I.N.S., 902 F.2d 394, 396 (5th Cir. 1990) (finding that immigration detainees did not qualify for protection under the FLSA because they were not " employees" ). Defendants also cite a March 31, 2012 Advisory Bulletin from the Colorado Department of Labor (" CDOL" ), which finds that inmates and prisoners are exempt from the CMWO and " are not employees according to Colorado law." See Doc. 11 Ex. D. Plaintiffs respond that the Advisory Bulletin does not apply because plaintiffs are civil immigration detainees in a private detention facility, and not prisoners in government custody. Doc. 15 at 19-22. Defendant argues that the reasoning applied in Alvarado to conclude that prisoners are not employees under the FLSA applies here because immigration detainees are housed by the government and do not require the minimum wage to bring up their standard of living. Doc. 18 at 19-22.
I find the Plaintiffs are not " employees" under the CMWO. Although immigration detainees appear to fall under the broad definition of " employee," so do prisoners, and the CDOL has found that the CMWO's definition of " employee" should not apply to prisoners. In addition, because immigration detainees, like prisoners, do not use their wages to provide for themselves, the purposes of the CMWO are not served by including them in the definition of employee. See C.R.S. § 8-6-104 (purpose of the minimum wage is to " supply the necessary cost of living and to maintain the health of the workers" ). Finally, the Fifth Circuit has held that immigration detainees are not employees under the FLSA's similarly broad definition (" any individual employed by an employer" ) because the congressional motive for enacting the FLSA, ...