ORIGINAL FRENCH ARTICLE: Travail en prison : zone de non-droit, laboratoire de flexibilité
by Alexandra Chaignon
Translated Friday 8 June 2012, by Derek Hansonand reviewed by
Repetitive, unskilled and underpaid labor, without a work contract or an indemnity if laid off… Prison labor negates all the principles of labor law, and it neglects the role of promoting job skills and social integration that it might play.
The affair began last December. It began with a violation of the rules. A prisoner, held while awaiting trial in the Versailles jail since 2010, took advantage of her status as a call center employee to make some personal calls. When the MKT Sociétal company learned of this, it decided to declass her – in prison, you don’t hire and fire, you “class” and “declass.” The prisoner, who considers herself to be the victim of a firing, sued in court for wrongful breach of labor contract. What’s being played out in the case goes far beyond the two protagonists. In reality, it is a question of knowing whether labor law should be applied in jail or not, in view of the fact that the status of prisoner has nothing to do with the common law.
The Labor Code is inapplicable in prison. As is indicated in the rules and regulations of the Nanterre jail, “the imprisoned person who works is not a salaried employee” covered by labor law, “except as concerns the rules of hygiene and safety.” This means: no minimum wage, the inapplicability of layoff procedures, non-payment of working days while on sick leave due to illness or an on-the-job accident, no paid holidays, etc. “In the absence of a labor contract, working conditions are unilaterally defined by the penitentiary administration as an ‘act of commitment in exercising a trade or profession.’ This substitute for a labor contract does not guarantee labor protection to imprisoned people. The administration is not even required to indicate the length of the working day,” notes a recent report on prison conditions.
In the opinion of the authorities, the low productivity of imprisoned personnel justifies far lower wages and benefits to those enjoyed by free workers. According to them, the norms associated with a labor contract, which they refuse to apply, “would create rights benefitting the prisoners,” and the enforcement of those rights would be a source of “highly dissuasive financial burdens for companies,” which would then lose “all interest in contracting with the penitentiary administration.”
But as is also underlined by Philippe Auvergnon, a director of research at the National Center for Scientific Research (CNRS) and a specialist in comparative labor law, “the administration is afraid of losing the means of exercising pressure that work constitutes, notably the power to class and declass.” “Work is the most powerful means to ensure order inside the prison,” says an instruction on the general rules for départemental prisons dating from … October 30, 1841. “This philosophy has come down through the ages. If the prisoners are working and have a basic minimum in income, this diminishes tensions proportionally and limits racketeering. The content of the labor does not matter, so long as the prisoners are simply occupied,” is the way Marie Crétenot, a jurist with the International Observatory on Prisons (OIP) sums the matter up.
The problem is that jobs are scarce. Only 24.34% of the prisoners had a job in 2010, according to the OIP. The low remuneration comes on top of that: the monthly income of prisoner workers is around 318 euros a month, according to the OIP. That is, around half the minimum wage. Of course, there is a minimum basic wage, but it is hardly ever respected.
Prison labor amounts to a “veritable laboratory for flexibility,” according to Philippe Avergnon and “is often used as variable to be adjusted according to the needs of companies.” Prisoners find themselves used as a back-up workforce, to be mobilized according to need. As Fabrice Guilbaud, a sociologist, notes: “in the course of a single month, the workforce can vary from 0 to 90 prisoners” in a workshop and “can double in a single day.” Such variations obviously have an effect on the level of monthly income, which may be reduced to half, a third, or a quarter of the previous level from one month to the next.
Hence there’s a shortage of work on offer, and yet demand on the part of the prisoners is high. They are forced to accept enervating, demoralizing jobs because this is one of the conditions for obtaining early release. “Work has not been obligatory since 1987, but the 2009 penitentiary law leads to an obligation to be economically active. Hence prisoners are under a sort of social obligation to find themselves an income, because work allows earlier release. Work is performed in a logic of receiving a reward,” Fabrice Guilbaud says. Work is also a means to survive, because, contrary to popular wisdom, you need money to live in prison. One third of all inmates have less than 45 euros to purchase items at the prison shop, when you need a minimum of 200 euros a month to live behind bars (to buy staple goods, supplement the food that is served, or rent a TV set).
Added to the precarious nature of employment is the impossibility of claiming a daily indemnity in case of illness or an on-the-job accident. The safety and hygiene rules, however, are often bent. A 2008 report by the penitentiary administration showed that, from 2005, over one third of the shortcomings pointed out in prisons during inspections remained unremediated.
While many prisoners complain about their working and living conditions, very few have recourse to the courts. “As there are no rules, many fear losing their job if they attempt to claim their rights,” the OIP notes. “The dominant feeling when they come out of prison and they talk about their work inside is a feeling of revolt,” said Nelly Grosdoigt, the director of the Work Liberty Space, the only agency of the French Employment Agency (Pôle emploi) that is specialized in accompanying released prisoners. “They feel that they’ve been exploited. Their vision of work would be better if they were treated better and more considerately.”
Fewer than 10,000 prisoners (out of 62,000) do piece-work, for a gross wage of barely three euros an hour, to the benefit of small and medium-sized enterprises and to the benefit of subcontractors for major brands (Renault, Yves Rocher, L’Oréal, Agnès B, Post-it).
Pay for work in prison is regulated by the Penal Procedure Code: 45% of the minimum wage for production jobs, 20% to 33% for general service jobs. In principle, “the remuneration of labor must approach, as much as possible, the remuneration of trade and professional activities outside of prison, notably in order to prepare the prisoners for the normal conditions of free labor,” according to the Code.
The rate of employment among prisoners: 24.34%, which is one of the lowest rates since 2000, when it was 37%.