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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6485 December 23, 1987 OCCUPATIONAL SAFETY AND HEALTH: Inmates of penal institution as employees Prison inmates who work in the state prison system are not "employees" within the provisions of the Michigan Occupational Safety and Health Act. Elizabeth P. Howe Director Department of Labor 309 North Washington Lansing, Michigan 48909 Gloria R. Smith Director Department of Public Health 3500 North Logan Street Lansing, Michigan 48909 You have requested my opinion on a question which may be stated as follows: Is a prison inmate who works in the prison system an "employee" within the meaning of the Michigan Occupational Safety and Health Act, MCL 408.1001 et seq; MSA 17.50(1) et seq? Sections 5(1)(2) and 6(1) of the Michigan Occupational Safety and Health Act, (MIOSHA), MCL 408.1005 and 408.1006; MSA 17.50(5) and 17.50(6), define "employee," "employer" and "place of employment" as follows: "Sec. 5. (1) 'Employee' means a person permitted to work by an employer. "(2) 'Employer' means an individual or organization, including the state or a political subdivision, which employs 1 or more persons. "Sec. 6. (1) 'Place of employment' means a factory, plant, establishment, construction site or other similar area, workplace, or environment where an employee is permitted to work." While prison employees clearly fall under the Michigan Occupational Safety and Health Act, it does not follow that individuals incarcerated in a prison by a court also fall within the Act. Labor by inmates is governed by the provisions of the Correctional Industries Act, MCL 800.321 et seq; MSA 28.1540(1) et seq. Section 7 of that Act, MCL 800.327; MSA 28.1540(7), provides in pertinent part: "The commission of corrections shall provide as fully as practicable for the employment of inmates in tasks consistent with the peanl and rehabilitative purposes of their imprisonment and with the public economy." (Emphasis added.) The Legislature explicitly stated its intent in Sec. 11 of the Act, MCL 800.331; MSA 28.1540(11), which provides in pertinent part: "(1) It is the intent of this act to do all of the following: "(a) Provide adequate, regular, diversified and suitable employment for inmates of the state consistent with proper penal purposes. "(b) Utilize the labor of inmates exclusively for self-maintenance and for reimbursing the state for expenses incurred by reason of their crimes and imprisonment." (Emphasis added.) Thus, as the Correctional Industries Act makes clear, labor by prison inmates is intended to be penal and rehabilitative. This is a distinctly different relationship from that normally existing between an employer and employee. The applicability of the general labor laws of the state to prison inmates was explored by the Michigan Court of Appeals in Prisoners' Labor Union at Marquette v Dep't of Corrections, 61 Mich App 328; 232 NW2d 699 (1975). Inmates alleged unfair labor practices by the Department of Corrections and petitioned the Michigan Employment Relations Commission (MERC) to certify representatives for purposes of collective bargaining. MERC had jurisdiction over the inmates' claims only if they were "public employees" within the meaning of the Public Employment Relations Act (PERA). The Court of Appeals addressed the relationship between inmates and the Department of Corrections, saying: "[A] closer look at the [Correctional Industries] act and the actual relationship between inmates and the Department of Corrections established thereunder forces the conclusion that 'employment'--in the usual sense of that term--was not of primary concern to the Legislature when the Correctional Industries Act was passed." Prisoners' Labor Union at Marquette, supra, 61 Mich App at 332. The court concluded that there was not an employment relationship for purposes of PERA between the inmates and the Department of Corrections but, rather, one of custodial rehabilitation "with employment utilized as a means to reach those ends." Prisoners' Labor Union at Marquette, supra, 61 Mich App at 337. The relationship between the state and inmate-laborers was also explored in OAG, 1983-1984, No 6158, p 129, 130 (June 24, 1983). That opinion examined the application of the Worker's Disability Compensation Act of 1969 to offenders sentenced by the court to perform community service work in lieu of fine or incarceration and offered the following analysis: "However, our Supreme Court and Court of Appeals have addressed issues whether prisoners, inmates, convicts or jailed individuals who perform work while under sentence of a court meet the employer/employee definition. Such decisions hold that there is no employer/employee relationship between incarcerated individuals and the state, city, county, etc., since there is neither an appointment nor true contract of hire but rather a custodial and rehabilitative relationship. See, Thompson v Bronk, 126 Mich 455, 456-457; 85 NW 1084 (1901); Cadeau v Boys' Vocational School, 359 Mich 598, 608-609; 103 NW2d 443 (1960); Green v Department of Corrections, 30 Mich App 648; 186 NW2d 792; aff'd 386 Mich 459; 192 NW2d 491 (1971); and Prisoners' Labor Union at Marquette v Department of Corrections, 61 Mich App 328; 336; 232 NW2d 699; lv den 394 Mich 843 (1975)...." There appears to be no basis for reaching a contrary conclusion here with respect to MIOSHA. It is my opinion, therefore, that inmates who work in the state prison system are not "employees" within the provisions of the Michigan Occupational Safety and Health Act, MCL 408.1001 et seq; MSA 17.50(1) et seq. Frank J. Kelley Attorney General
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