FILE 

AUG El 4 N21 

fH A. BPOWN 

'UPREME U 

IN THE SUPREME COURT OF THE 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 

CONSERVATION AND NATURAL 

RESOURCES; THE STATE OF 

NEVADA, DIVISION OF FORESTRY; 

STEVE SISOLAK, IN HIS OFFICIAL 

CAPACITY AS GOVERNOR OF 

NEVADA; BRADLEY CROWELL, IN 

HIS OFFICIAL CAPACITY AS 

DIRECTOR OF NEVADA 

DEPARTMENT OF CONSERVATION 

AND NATURAL RESOURCES; AND 

KACEY KC, IN HER OFFICIAL 

CAPACITY AS NEVADA STATE 

FORESTER FIREWARDEN; 

COLLECTIVELY, 

Res eondents. 

ORDER OF AFFIRMANCE 

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" in accordance with NRS 209.457(2)(a). He was paid approximately 

$3 per day and an additional $1 per hour for emergency incident response 

assignments. In the underlying action, Gonzalez claimed backpay, arguing 

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that he was entitled to minimum wage for his employment with the inmate 

work program pursuant to Article 15, Section 16 of the Nevada State 

Constitution, the Minimum Wage Amendment (MWA). See Nev. 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 wages to employees . . . in order to fight poverty 

and ensure that workers who are the backbone of our economy receive fair 

paychecks that allow them and their families to live above the poverty line." 

See MDC Rests., LLC v. Eighth Judicial Dist. Court, 134 Nev. 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 standards under the MWA run parallel 

to those of the 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 courts have considered the issue of whether inmates in 

work programs are guaranteed a minimum wage under the federal Fair 

Labor Standards Act (FLSA) and concluded that they are not. We find these 

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: 

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Under [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 of substandard wages does not apply where a worker's welfare 

is not a function of wages. Id. at 810-11. 

The federal cases are instructive here. The primary goals of the 

MWA are two-fold: (1) raise the minimum wage and, (2) broaden the class 

of workers with access to the minimum wage, so that workers are prevented 

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 

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J. 

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 rehabilitative relationship. Morgan, 

41 F.3d at 1293. Thus, Gonzalez was not an "employee" for purposes of the 

MWA. Accordingly, we 

ORDER the judgment of district court AFFIRMED. 

Cadish 

• 

Silver 

J. 

Herndon 

4 

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PICKERING, 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 

of the FLSA and other minimum wage laws. See Henthorn v. Dep't of Navy, 

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 

entitling the plaintiff to minimum wage. But the outcome could be 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 

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