Illustration by Jandos Rothstein
This article is a joint publication of The American Prospect and Workday Magazine, a nonprofit newsroom devoted to holding the powerful accountable through the perspective of workers.
Since December 2022, Michael Common has spent time during his incarceration working in the kitchen of Minnesota Correctional Facility-Stillwater, in the eastern part of the state. He cleans pots and pans, which he calls “the hardest job there,” and he started at just 50 cents an hour.
He heard from other incarcerated workers that if he worked hard he would get a raise. Sure enough, his boss soon agreed to bump his pay to the highest rate in the kitchen: $1.25 an hour, Common says. The pay increase went into effect for the paycheck dated December 29, which he confirmed by reading his pay stubs over the phone.
“I was very much excited,” says Common, who is 42 years old and has been locked up for more than five years, and in Stillwater for about a year. His new pay of $1.25 an hour is a tiny fraction of the minimum wage for people outside of prison, in a country where prisoners are excluded from federal protections against slavery, and routinely work for little or nothing. But for Common, his hourly pay rate more than doubled with the raise. He was eager for any boost as he struggled to afford necessities in prison and save up for leaving on his release date of July 31.
But in late February, Common says he was informed when he came into work that his raise would be eliminated. The only reason he was given, he says, is that “we were audited.”
The disappointment was magnified in late April, when Common was one of around a dozen men from the kitchen p.m. shift who were told to report to the prison chapel. There, they were met by prison authorities, including someone from the finance department, who were flanked with corrections officers, Common recalls. They delivered some bad news.
It turned out, the authorities said, that the raise given to Common and the other workers constituted an “overpayment,” and the men would have to pay back the extra money that was given to them. For Common, this came to $189.50, which he says “is a lot of money to me,” given that wages are so low. At 50 cents an hour, it takes more than two months to make that amount in gross wages. According to Common, the authorities again referenced an audit to explain why this was happening.
“They was just robbing us,” Common says.
Others were told that they owed even more. Jabaris Boldman, who worked the a.m. shift as a cook and was called in with a separate group of around 30 a.m. workers, was told he owed $205.50, and this sum was confirmed by a DOC “Notice of Overpayment” he sent to me in the mail. And Jonathan, another incarcerated individual at the prison who requested that only his first name be used, was also informed that he owed around $450.
Such unilateral actions would not be permissible in Minnesota outside of a prison.
When reached for comment, Andy Skoogman, a spokesperson for the Minnesota Department of Corrections (DOC), confirmed the broad outlines of these men’s allegations, explaining that 44 incarcerated food service workers had to repay a collective sum of $10,000 that they were “overpaid.” That comes to an average of $227 per person, representing multiple months of gross wages.
Skoogman claims that the “overpayment” originated when a supervisor, an employee of DOC, made an “error in the timesheets” and changed the start dates of the 44 incarcerated workers. “They must be in a job for at least 60 days in an evaluation period to be eligible for a raise,” says Skoogman. “The 44 incarcerated persons in question had not been working long enough to be eligible for the raises. They were overpaid.”
The forced repayment of the raises does not constitute wage theft, Skoogman claims. “According to the Department of Labor and Industry, wage theft is defined as an employer avoiding or failing to pay wages earned by its employees,” he says. “These were overpayments.”
But such unilateral actions would not be permissible in Minnesota outside of a prison. A spokesperson for the Minnesota Department of Labor and Industry told me that, for regular employees, “an employer cannot make deductions from wages due for any claimed indebtedness unless the employer first either gets a voluntary written authorization from the employee to make the deduction, or has the employee held liable in court for the claimed indebtedness.”
Bradford Colbert, the director of Legal Assistance to Minnesota Prisoners and a law professor at Mitchell Hamline School of Law, says that while prisoners have fewer legal rights compared to non-incarcerated workers, they do have some relevant protections. “Due process under the U.S. and Minnesota constitution provides that you can’t deprive someone of their property without providing them some kind of process,” Colbert says. “In this case, the incarcerated person has a property interest in this money. The Department of Corrections can’t just take the incarcerated person’s property without providing some sort of process.”
“If someone said they had the authority to increase your salary, and you worked harder based on that, you would be able to argue that you were not overpaid,” he adds. “It doesn’t seem obvious they were overpaid. That’s the reason you have due process before you start taking someone’s money.”
When asked about due process, Skoogman said the incarcerated workers “have access to the DOC’s administrative grievance process for contesting the return of the overpayments.”
But Alan Mills, the executive director of Chicago-based Uptown People’s Law Center, which advocates for the legal rights of prisoners, says, “In general, they can’t take property first and then give you a hearing. They are talking about a post-deprivation grievance, which, in general, is not sufficient.”
Boldman says emphatically that there was no due process. “They just started taking the money. They’re still taking the money.”
Common says he is skeptical of the DOC’s version of why the raise was taken back in the first place. “It couldn’t have been an error. There was no error. They do what they want.”
According to Jonathan, “I worked hard in the kitchen to make that raise. I was motivated by that incentive. I was paid what I was told I was going to get paid … When the kitchen supervisor says he’s going to pay you a wage and then pays you that wage, how is that an overpayment?”
The men incarcerated in Stillwater say prison authorities used a few different methods to claw back the funds. In some cases, the money was taken directly out of the individuals’ spending accounts. In other cases, the funds were garnished from both wages and money given to the men by their families. “The last $150 my grandma sent they took $75 and put it toward my ‘overpayment,’” says Jonathan.
Skoogman, the DOC spokesperson, says that payment plans have been set up for some of the workers “who need it.”
According to Colbert, “It’s problematic to garnish someone’s wages, but it’s really problematic to take it from a different account, especially an account where you get money from your relatives.”
David Boehnke, an unpaid organizer with the Twin Cities Incarcerated Workers Organizing Committee, says that—whatever the laws say—what happened to these incarcerated workers constitutes wage theft on an ethical level, and should not be allowed to stand. “Of course this is wage theft,” he says. “If my boss gives me a raise and pays me extra, and then his boss says, ‘Actually never mind, don’t do that, I have a rule to pay them less,’ do you think I’d let them take that money back? Hell no.”
The DOC Notice of Overpayment given to Boldman, who is 39 years old, states that 50 percent of his future wages and 50 percent of his incoming funds—in his case, money sent from family—will be taken to “correct the overpayment.” He is deeply frustrated, he says, because he was hoping to have some money saved for when he gets out. His release date is currently scheduled for 2033, but Boldman is hopeful that it will come sooner now that Minnesota has passed the Minnesota Rehabilitation and Reinvestment Act, which will allow earlier release for some incarcerated people.
Forcing incarcerated people to work is also permitted at the federal level.
Boldman worked hard for his raise, he says, “cooking for the entire institution,” and he found the withdrawal of funds profoundly demoralizing. “It feels like I’m exhausted,” he says. “It’s like, help me, you know what I’m saying?” He says he quit working in the kitchen not long after the clawback, and is now doing a painting job for $1 an hour.
Boldman’s family lives far away—in Milwaukee and Chicago—making it hard for them to visit. It is especially difficult to be separated from his 16-year-old daughter, he says. “It’s not enough that I’m locked up and away from my family. They still find a way to fuck us over.”
Incarcerated individuals in the Minnesota corrections system say that abusive and coercive work conditions extend well beyond the incident at Stillwater. Two men incarcerated at Minnesota Correctional Facility-Oak Park Heights, a maximum-security prison in eastern Minnesota, tell me that people held there are being forced to work, and punished with segregation and solitary confinement if they refuse. According to the two men, the workers being coerced are laborers in the canteen employed by MINNCOR, a for-profit company within the state Department of Corrections.
Skoogman did not respond to a request to confirm these allegations, but did point me to a DOC policy that states, “All offenders who can work must work. If you refuse to work, you will have many privileges taken away. Work can be education, treatment, or other programs.”
Forcing incarcerated people to work is also permitted at the federal level. “The 13th Amendment outlawed slavery and involuntary servitude, ‘except as a punishment for crime whereof the party shall have been duly convicted,’” notes a 2022 report by the American Civil Liberties Union and the University of Chicago Law School’s Global Human Rights Clinic.
People locked up in U.S. prisons are also denied many other protections afforded to non-incarcerated workers, like a minimum wage and unionization rights. The lowest wage for incarcerated workers in Minnesota is 25 cents an hour. Prisoners who work for companies that do interstate commerce are required to be paid prevailing wages (in 2018, the prevailing wage was $7.60), journalist Filiberto Nolasco Gomez reported for Workday Magazine. But, Gomez notes, these workers face staggering paycheck deductions, for expenses ranging from court-ordered fines to “disciplinary restitution” to the cost of confinement.
“Prisoners are already not receiving minimum wage, which is a form of wage theft,” says Najah Farley, a senior staff attorney at the National Employment Law Project. “So just taking back this raise is a manifestation of the larger issue of not paying prisoners minimum wage.”
Common, who has a 12-year-old daughter and six-year-old son, still works in the kitchen, but remains perplexed and sad about the withdrawal of the sum from his spending account. He likes to bead necklaces and work out in his free time, and says the incident makes him even more eager to get out.
The loss of funds is especially upsetting, he says, in light of the soaring costs in prison. “Everything in here is expensive,” Common says. “For boxer shorts, it’s $10 for one pair. They are going up on the prices for everything.”
“I wasn’t expecting them to just go and take the money like that,” he adds. “There are some people in here who have life in prison or 20 or 30 years left. Some people don’t have family and friends who can afford to send them money like that. It’s even worse for them.”
