# FILE
AUG 

### El4 

### N21

fHA. BPOWN 'UPREME U 

### IN THE SUPREME COURT OFTHE STATE OF NEVADA

No. 82762

DEP Y CLERK 

### DAVID A. GONZALEZ,AN INDIVIDUAL, Appellant, vs. THE STATE OF NEVADA;THE STATE OF NEVADA DEPARTMENT OF CONSERVATIONAND NATURAL RESOURCES;THE STATE OF NEVADA, DIVISION OF FORESTRY; STEVE SISOLAK, IN HIS OFFICIAL CAPACITYAS GOVERNOR OF NEVADA; BRADLEY CROWELL, IN HISOFFICIAL CAPACITYAS DIRECTOR OF NEVADA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES;AND KACEY KC, IN HER OFFICIAL CAPACITYASNEVADA STATE FORESTER FIREWARDEN; COLLECTIVELY, Reseondents. ORDER OFAFFIRMANCE

This is an appeal from a district court order dismissing a complaint for unpaid wages. Eighth Judicial District Court, Clark County; Adriana Escobar, Judge.

Appellant David Gonzalez, an inmate in the Nevada Department of Corrections, was contracted by the Nevada Division of Forestry "to perform work related to firefighting_ and other work projects"inaccordancewith NRS209.457(2)(a). Hewaspaid approximately $3 per day and an additional $1 per hour for emergency incident response assignments. In the underlyingaction, Gonzalez claimedbackpay, arguing

SUPREME COURT OF NEVADA (0) I947A 

## zz_z(4,491that he was entitled to minimum wagefor his employment with the inmate

work program pursuant to Article 15, Section 16 of the Nevada State Constitution, theMinimumWageAmendment (MWA). SeeNev. Const. art. 15, § 16(C). The district court granted the State's motion to dismiss after determining that an inmate working pursuant to an inmate work program in Nevada does not meet the definition of an "employee" under the MWA. This appeal followed. We affirm.

The MWA was approved and ratified by Nevada voters in 2004 and 2006 "to provide higher wagestoemployees

. . . in order tofight poverty and ensure that workers who are the backbone ofour economy receive fair paychecks that allowthem and theirfamiliestolive abovethe povertyline." SeeMDCRests., LLC v. Eighth Judicial Dist. Court, 134Nev. 315, 324, 419 P.3d 148, 155 (2018) (internal quotations omitted);see also Nev. Const. art. 15, § 16(C). In many significant aspects, such as determining whether an employment relationship exists, the standardsunder theMWArun parallel to those ofthe federal Fair Labor Standards Act (FLSA). See Doe Dancer I
v. La Fuente, Inc., 137 Nev., Adv. Op. 3, 481 P.3d 860, 866-67 (2021); Terry
v. Sapphire Gentlemen's Club, 130 Nev. 879, 883-86, 336 P.3d 951, 955-56 (2014). Federal courtshave considered the issue ofwhether inmatesin work programs are guaranteed a minimum wage under the federal Fair Labor StandardsAct (FLSA)and concludedthat theyarenot. Wefindthese decisions persuasive. In Morgan v. MacDonald, 41 F.3d 1291, 1293 (9th Cir. 1994), the Ninth Circuit held that the minimum wage provisions of FLSA did not apply to a Nevada inmate because he was not an employee under the economic realities test. In doing so, the court reaffirmed its holding in Hale v.Arizona, 993 F.2d 1387 (9th Cir. 1993), explaining that:

SUPREME COURT

OF NEVADA (0) 19479 2Under [NRS] 209.461, all inmates are required to work or receive training for 40 hours each week. Thus, Morgan was in no sense free to bargain with would-be employers for the sale of his labor; his work at the prison was merely an incident of his incarceration. Morgan and the prison didn't contract with one another for mutual economic gain, as would be the case in a true employment relationship; their affiliation was penological, not pecuniary. Because the economic reality of Morgan's work at the prison clearly indicates that his labor belonged to the institution, he cannot be deemed an employee under the FLSA. Morgan, 41 F.3d at 1293 (internal citations and quotations omitted). Similarly, in Vanskike v. Peters, the Seventh Circuit explained that federal courts have generally declined to extend the FLSA's minimum wage provision to prisoners who work in prison. 974 F.2d 806, 807-08 (7th Cir. 1992). While an employee's status is determined by the totality of the circumstances rather than any technical label, id. at 808, the court noted that the evil ofsubstandard wages does not apply where a worker's welfare is not a function ofwages. Id. at 810-11.

Thefederalcases areinstructivehere. The primary goalsofthe MWA are two-fold: (1) raise the minimum wage and, (2) broaden the class ofworkerswith accesstothe minimum wage, sothat workers areprevented from falling into substandard living conditions. See MDC Rests., 134 Nev. at 324, 419 P.3d at 155; see also Terry, 130 Nev. at 884, 336 P.3d at 955 (noting that the MWA signals "voters' wish that more, not fewer, persons would receive minimum wage protections"). Likewise, the central purpose of the FLSA is to ensure a minimum standard of living for workers. See Morgan, 41 F.3d at 1292; Vanskike, 974 F.2d at 810-11. As observed in Morgan, Vanskike, and other cases applying the FLSA, the fundamental relationship between employers and employees vastly differs from the
SUPREME COURT

OF NEVADA
(01 I947A 3J. Stiglich

J. C.J. Parraguirre

J. Hardesty relationship between the State and inmates. The concern of falling into substandard living conditions, or the evils of substandard wages, do not apply to inmates, who are guaranteed housing, meals, medical attention, and the ability to participate in work programs in exchange for sentencereduction credits. Vanskike, 974 F.2d at 810-11. The realities of incarceration, and the working relationship that stems from inmate work programs, are not based on an economic relationship between inmates and the State,but rather a penological and rehabilitativerelationship. Morgan, 41 F.3d at 1293. Thus, Gonzalez was not an "employee"for purposesofthe MWA. Accordingly, we

ORDER thejudgment of district court AFFIRMED.

Cadish

• Silver

J. Herndon

4 SUPREME COURT OF NEVADA (0) 1947APICKERING, J., concurring: I join the order affirming the district court's dismissal. I write separately to note that, while the circumstances under which an incarcerated individual has been held entitled to minimum wage are rare, the law does not categorically exclude such individuals from the protections ofthe FLSAand other minimum wagelaws. See Henthorn v. Dep't ofNavy, 29 F.3d 682, 685 (D.C. Cir. 1994) ("[M]ost courts refuse to hold that prisoners are categorically barred from ever being 'employees' within the meaning of the FLSA merely because of their prisoner status.") (emphasis omitted); Barnett v. Young Men's Christian Ass'n, Inc., No. 98-3625, 1999 WL 110547 (8th Cir. Mar. 4, 1999); Watson v. Graves, 909 F.2d 1549 (5th Cir. 1990). The complaint in this case does not allege circumstances entitlingtheplaintiffto minimum wage. But the outcomecouldbe different under different circumstances.

J. Pickering

cc: Hon.Adriana Escobar, District Judge Gallian Welker & Beckstrom, LC/Las Vegas Attorney General/Carson City Eighth District Court Clerk

SUPREME COURT OF NEVADA (0) 1947A " 5