Wage and Hour Division (WHD)
Section 64c03: Prisoners
Questions regarding the FLSA employment status of prisoners who have committed criminal offenses and are ordered confined to a mental hospital or other type of institution providing residential care require immediate consultation with the NO and the RSOL. Generally, a prisoner/patient who performs work for the hospital or institution (such as janitorial chores or kitchen duties) is not considered an employee for FLSA purposes. However, where a prisoner/patient is employed by the hospital or institution for commercial purposes, such as making products for sale, or is working for an outside commercial contractor that is covered by the Act, the prisoner may be considered an employee for FLSA purposes. Complaints raising this issue must be cleared by the National Office/Office of Enforcement Policy (NO/OEP) before taking any action.