THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY GREENLEAF, RAFFERTY, BOSCOLA, TARTAGLIONE, MUSTO, COSTA, WASHINGTON, WILLIAMS, BRUBAKER AND WARD, FEBRUARY 26, 2010

SENATOR GREENLEAF, JUDICIARY, AS AMENDED, APRIL 13, 2010  

AN ACT

Amending Title 61 (Penal and Correctional Institutions) of the

Pennsylvania Consolidated Statutes, establishing the Prison

Industry Enhancement Authority; providing for employment of

prisoners by private industry and for subcontracts with

correctional agencies; establishing guidelines for prisoner 

compensation; and providing for location of private sector

prison industry.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 61 of the Pennsylvania Consolidated

Statutes is amended by adding a chapter to read:

CHAPTER 19

PRISON INDUSTRY ENHANCEMENT AUTHORITY

Sec.

1901.  Scope of chapter.

1902.  Intent.

1903.  Definitions.

1904.  Prison Industry Enhancement Authority.

1905.  Powers and duties of authority.

1906.  Cooperation with private industry.

1907.  Minimum requirements of private sector prison industry.

1908.  Wages and deductions.

1909.  Administrative support.

1910.  Immunities not waived.

1911.  Civil actions.

1912.  Construction of chapter.

1913.  Monetary limitations.

§ 1901.  Scope of chapter.

This chapter relates to the Prison Industry Enhancement

Authority.

§ 1902.  Intent.

It is the intent of the General Assembly that joint ventures

between correctional facilities and private industry be

established so that prisoners incarcerated in correctional

facilities be productively engaged. Private industry in this

Commonwealth will become more competitive in the marketplace

while not displacing job opportunities for civilian labor in the

community. It is further the intent of the General Assembly to

structure the use and availability of prisoner labor and

regulate its use to assure that prisoner labor will not be used

to replace work opportunities for unemployed or underemployed

residents of this Commonwealth. The private sector prison

industry will not result in bargaining agreements for civilian

laborers. Prisoners who volunteer and are deemed eligible for

these jobs will be better able to:

(1)  Develop positive work habits that will assist them

in securing and holding gainful employment in the public and

private sectors subsequent to their release from

incarceration.

(2)  Pay a reasonable portion of the room and board in a

correctional facility.

(3)  Accept responsibility for the consequences of their

actions by compensating victims of crime through deductions

from their earnings.

(4)  Provide financial assistance to their dependents,

thus strengthening and promoting family ties while reducing

the likelihood that their families may eventually have to

rely upon public assistance.

§ 1903.  Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Authority."  The Prison Industry Enhancement Authority.

"Certification."  The process where an applicant demonstrates

assurances of authority, compliance with mandatory program

criteria and describes key project elements as required by

Federal law.

"Correctional facility."  Any jail, prison or detention

facility operated by the Commonwealth or by a county or jointly

by more than one county and used for the detention and

confinement of persons convicted and under sentence for

violations of the criminal laws of this Commonwealth. For

purposes of this chapter, the term shall also include any

motivational boot camp as defined in 42 Pa.C.S. § 3903 (relating

to definitions). The term does not include any correctional

facility used for the detention and confinement of juvenile

offenders.

"Cost accounting center."  A specific industry program

operated under the private sector prison industry enhancement

certification program.

"County commissioners."  Elected county commissioners or the

equivalent governing body of any county, regardless of form of

government.

"Customer model."  An arrangement under which:

(1)  the private business, private enterprise or

nonprofit entity purchases all or a significant portion of

the output of a prison-based business owned and operated by a

government entity, political subdivision or an

instrumentality thereof; and

(2)  the private sector partner assumes no major role in

the industry operation, does not direct production and

exercises no control over prisoner labor.

"Director of correctional industries."  An individual who has

authority to operate and manage the Prison Industry Enhancement

Certification Program under the direct supervision of the

Secretary of Corrections and the Prison Industry Enhancement

Authority.

"Employer model."  An arrangement under which a private

business, private enterprise or nonprofit entity owns and

operates the cost accounting center with limited State or local

government involvement by controlling the hiring, firing,

training, supervision and payment of the prisoner work force,

and the Department of Corrections assumes no major role in the

industry operation, does not direct production and exercises

minimum control over prisoner labor performance.

"Justice Assistance Act of 1984."  The Justice Assistance Act

of 1984 (Public Law 98-473, 98 Stat. 2077).

"Municipality."  A municipal corporation or quasi-municipal

corporation, including counties.

"Office."  The Office of Victims' Services within the

Department of Corrections.

"Open market."  An unrestricted stream of commerce within

this Commonwealth and outside the borders of this Commonwealth

in interstate commerce.

"Prisoner."  An individual who has been convicted of a crime

and is serving a sentence in a correctional facility.

"Private business," "private enterprise" or "nonprofit

entity."  An individual, firm, partnership, corporation or other

lawful commercial enterprise or nonprofit organization that,

under this chapter, operates a private sector prison industry

and employs State or county prisoners.

"Private sector prison industry."  A private business,

private enterprise or nonprofit entity that produces goods or

services employing prisoner labor in or on the property of a

State or county correctional facility.

"Program."  The Prison Industry Enhancement Certification

Program established under Federal law.

"Superintendent."  The person in primary charge of the

administration and managers of a State correctional facility.

"Warden."  The person in primary charge of the administration

and management of a county or multicounty correctional facility.

§ 1904.  Prison Industry Enhancement Authority.

(a)  Establishment.--There is established an authority to be

known as the Prison Industry Enhancement Authority.

(b)  Composition.--The authority shall consist of the

following members:

(1)  The secretary or a designee who shall serve as

chairman.

(2)  The director of correctional industries.

(3)  One representative from organized labor appointed by

the Governor from a list submitted by the Statewide labor

organizations in this Commonwealth.

(4)  One county commissioner nominated by the County

Commissioners Association of Pennsylvania and appointed by

the Governor.

(5)  One warden appointed by the Governor.

(6)  One representative from the business community

appointed by the Governor from a list submitted by the

business community.

(7)  One superintendent appointed by the secretary.

(c)  Terms.--Terms for members shall be as follows:

(1)  Three years for the county commissioner.

(2)  Two years for the representative from the business

community.

(3)  Two years for the warden and the superintendent.

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(4)  Two years for the representative from organized

labor.

(5)  The secretary and director shall serve continuously.

(d)  Reappointment.--A member of the authority may be

eligible for reappointment. A member shall continue to serve

after the expiration of the member's term until a successor is

appointed.

(e)  Vacancies.--A vacancy shall be filled by the original

appointing authority for the remainder of the expired term. A

vacancy shall be filled within 90 days of the occurrence of the

vacancy.

(f)  Meetings.--The authority shall meet biannually and upon

the request of the chairman or three or more members. All

meetings may or may not be open to the public at the discretion

of the secretary or the authority.

(g)  Quorum.--For the transaction of general business of the

authority, four members shall constitute a quorum. A majority

vote of the members present will be necessary for a private

sector prison industry application to be approved. Each approval

of a private sector prison industry application shall be made by

a vote at a duly constituted meeting of the authority.

(h)  Compensation.--Members shall receive no compensation for

their services on the authority, but shall be reimbursed by the

department from the department's manufacturing funds for

reasonable and necessary expenses.

(i)  Administration of authority.--The department shall

furnish administrative support to the authority. Legal counsel

for the authority shall be furnished by the Office of General

Counsel.

§ 1905.  Powers and duties of authority.

The authority shall have the powers and duties to:

(1)  Authorize the department to apply to the United

States Department of Justice, Bureau of Justice Assistance or

any successors for certification, as an umbrella authority,

to assist other units of government seeking to participate in

the program.

(2)  Act as an intermediary between the department, and

its designees, and the United States Department of Justice,

Bureau of Justice Assistance or any successors in complying

with the mandatory criteria and program requirements for

private sector prison industries in this Commonwealth.

(3)  Adopt procedures for determining whether a

prospective private sector prison industry proposed by the

department or any county correctional agency complies with

the requirements of the program and other State law not

inconsistent with this chapter.

(4)  Approve or disapprove proposals submitted to the

authority from the department, or its designees, for private

sector prison industry for inclusion or continuation in the

program.

(5)  Monitor the department and its designees to ensure

continuing compliance with this chapter and Federal law and

provide proper notification of violations and proposed

actions taken to ensure compliance.

(6)  Designate which services to be performed or articles

manufactured or assembled by prisoners are conforming to the

program regulations and can be sold on the open market.

§ 1906.  Cooperation with private industry.

(a)  General rule.--Upon the approval of the authority, the

department or a county correctional facility, with the approval

of its governing board, may enter into contracts with a private

business, private enterprise or nonprofit organization to permit

the employment of prisoners to perform designated work. The

department shall remain responsible for the custody of State

prisoners who are working for a cost accounting center operated

by the department. The county shall remain responsible for the

custody of county prisoners who are working for a cost

accounting center operated by the county. The contractual

arrangement authorized by this chapter shall not create any

third-party rights in any prisoner.

(b)  Status of prisoner.--No prisoner compensated for

participation in the program shall be considered to be an

employee of the Commonwealth or the county nor shall the

prisoner be afforded the rights and privileges of Commonwealth

or county employees.

(c)  Certain rights preserved.--Nothing contained in this

section shall be deemed to restore, in whole or in part, the

civil rights of participating prisoners, except that

participating prisoners shall be afforded the protection of the

Fair Labor Standards Act of 1938 (52 Stat. 1060, 29 U.S.C. § 201 

et seq.), Title VII of the Civil Rights Act of 1964 (Public Law

88-352, 78 Stat. 241), the Occupational Safety and Health Act of

1970 (Public Law 91-596, 29 U.S.C. § 651 et seq.), the Age

Discrimination Act of 1975 (Public Law 94-135, 42 U.S.C. § 6101 

et seq.), the Americans with Disabilities Act of 1990 (Public

Law 101-336, 104 Stat. 327), the act of June 2, 1915 (P.L.736,

No.338), known as the Workers' Compensation Act, the act of

October 27, 1955 (P.L.744, No.222), known as the Pennsylvania

Human Relations Act, the act of July 14, 1961 (P.L.637, No.329),

known as the Wage Payment and Collection Law, and the act of

January 17, 1968 (P.L.11, No.5), known as The Minimum Wage Act

of 1968, solely to the extent that they apply to the private

sector prison industry employment relationship.

(d)  Consent to deduction.--A prisoner may participate in the

program established under this chapter only on a voluntary basis

and must consent, in advance, to the specific deductions from

gross wages, as set forth under section 1908 (relating to wages

and deductions). A prisoner performing services for a cost

accounting center shall indicate, in writing, that he or she:

(1)  agrees voluntarily to participate in the cost

accounting center activities; and

(2)  agrees voluntarily, and in advance, to specific

deductions made from gross wages, as well as all other

financial arrangements made as to wages earned through

participation in the cost accounting center's activities.

§ 1907.  Minimum requirements of private sector prison industry.

(a)  Requirements enumerated.--A private business, private

enterprise or nonprofit organization may not enter into a

contract under section 1906 (relating to cooperation with

private industry) unless it demonstrates all of the following:

(1)  The private business, private enterprise or

nonprofit organization, the department or the governing

authority of the county correctional system, whichever is

applicable, consulted with local union central bodies and

with local businesses that may be affected by the private

business, private enterprise or nonprofit organization

participating in the program.

(2)  The private business, private enterprise or

nonprofit organization has verified with the Department of

Labor and Industry that its participation in the program will

not:

(i)  demonstrably result in the displacement of

employees in the surrounding community;

(ii)  be applied in skills, crafts or trades in which

there is a surplus of available gainful labor in the

locality; or

(iii)  impair existing contracts for goods and

services. A contract may not be executed by or with a

private sector prison industry employer that will permit

the employment of prisoners in the same job

classifications or similar work duties or assignments as

individuals who are on strike, as defined in the act of

June 1, 1937 (P.L.1168, No.294), known as the

Pennsylvania Labor Relations Act, or who are otherwise

involved in a labor dispute as that term is defined by

Federal or State law, including a lockout.

(b)  Priorities.--When reviewing a potential private sector

prison industry, the authority shall consider the impact on the

employment of persons in the private business sector of this

Commonwealth and consider establishing joint ventures that will

retain or reclaim jobs in this Commonwealth, support emerging

Commonwealth industries or create jobs for a deficient labor

market.

§ 1908.  Wages and deductions.

(a)  Wages.--All prisoners participating in a cost accounting

center's activities shall be compensated at a rate that is not

less than the wages paid for work of a similar nature in private

industry in the locality in which the activity is performed, as

determined after consultation with the Department of Labor and

Industry. A prisoner may not receive compensation that is less

than the minimum wage established by Federal or State law unless

the lesser compensation is consistent with Federal and State

law. Wages shall be paid no less frequently than biweekly. Any

wages remaining after the deductions under subsection (b) shall

be maintained by the appropriate correctional authority in a

fund in the prisoner's name. The amount remaining shall be

returned to the prisoner at the time of release. The

correctional authority may permit the prisoner to draw a portion

of the money for other purposes deemed to be appropriate by the

correctional authority.

(b)  Deductions.--

(1)  A prisoner shall have deducted from any compensation

received:

(i)  Federal, State and local taxes.

(ii)  Contributions to the Crime Victims Compensation

Fund or equivalent fund established by law to compensate

victims of crime, which contributions shall not be less

than 5% nor more than 20% of the prisoner's gross wages.

(iii)  A reasonable portion of the room and board and

administrative costs for the prisoner in a correctional

facility as determined by the department or the governing

body of the county correctional agency.

(iv)  An allocation for support of the prisoner's

immediate family under statute or court order or under

any other financial obligation acknowledged in writing by

the prisoner.

(v)  All deductions in their entirety shall not

exceed 80% of a prisoner's gross wages. The prisoner 

employee shall be paid, credited with, or otherwise

benefit from, the 20% gross remainder. The benefit may

include directing the remaining 20% to workers' expense

accounts, or to the settling of the workers' legal

obligations, including the payment of fines and

restitution.

(2)  No other deductions shall be permitted unless

otherwise permitted pursuant to Federal or State law.

Deductions shall not in the aggregate exceed 80% of gross

wages. Each prisoner employed shall receive a written

statement of the description and amount of each deduction.

(c)  Workers' compensation.--The provision of benefits and

compensation to prisoners for injuries sustained in the course

of employment provided for under this chapter shall be subject

to any limitations set forth under the act of June 2, 1915

(P.L.736, No.338), known as the Workers' Compensation Act.

(d)  Unemployment insurance.--No prisoner may qualify for

unemployment insurance payments.

§ 1909.  Administrative support.

The department shall provide the authority with reasonable

administrative and clerical support services subject to the

availability of funds.

§ 1910.  Immunities not waived.

No provision of this chapter shall waive or impair any

sovereign, government, qualified or other immunity from or

defense against suit available to the Commonwealth and its

departments, boards, officers, employees and agents or the

political subdivisions of this Commonwealth and their agencies,

officers and employees.

§ 1911.  Civil actions.

No prisoner may bring a civil action before any court,

independent commission or authority of this Commonwealth against

the authority, the Commonwealth or its agencies, officers or

employees or the political subdivisions of this Commonwealth and

their agencies, officers and employees based upon a contractual

arrangement authorized under this chapter.

§ 1912.  Construction of chapter.

No provision of this chapter may be construed as creating a

civil cause of action against the authority, the Commonwealth or

its agencies, officers or employees or the political

subdivisions of this Commonwealth and their agencies, officers

and employees. Nothing in this chapter may create an enforceable

right in any person to obtain or retain employment in the

private sector prison industry. Nothing in this chapter shall

require the department or any county to propose or permit a

private sector prison industry within the correctional facility.

§ 1913.  Monetary limitations.

There shall be no monetary limitations on the amount of goods

and services supplied to the open market unless otherwise stated

by the authority.

Section 2.  All acts and parts of acts are repealed insofar

as they are inconsistent with the addition of 61 Pa.C.S. Ch. 19.

The addition of 61 Pa.C.S. Ch. 19 shall not affect or change the

method or manner of prisoner work assignments within a

correctional facility or the statutory authority to compel the

labor on behalf of the Commonwealth or any political subdivision

thereof.

Section 3.  This act shall take effect in 90 days.