Souder v. Brennan, 367 F. Supp. 808 (D.D.C. 1973)
Key Issue: “minimum wage and overtime compensation provisions of the Fair Labor Standards Act apply to patient-workers of non-federal hospitals, homes and institutions for the mentally retarded and mentally ill”
The court ruled that notwithstanding claims that work is therapeutic, patient-workers at non-federal institutions are “employees” covered by the minimum wage and overtime compensation provisions of the Fair Labor Standards Act.
The issue of mental patient labor had first been brought to public attention by Lewis Bartlett in a July 1964 article in The Atlantic Monthly “Institutional Peonage: Our Exploitation of Mental Patients.” Nine years later this case, seeking the status of employees for patient-workers, was brought by Paul Friedman, a founder (in 1972) of the Mental Health Law Project (now the Bazelon Center) and subsequently its director, and two other attorneys.
The basis for the suit were 1966 amendments to the Fair Labor Standards Act (FLSA) which revised the meaning of “enterprise” to explicitly extend the FLSA’s coverage to employees of public and private non-Federal hospitals and institutions for the residential care of the mentally ill. The Department of Labor (DOL) determined it would not enforce the Act in respect to patient-workers. It shifted its ground for the decision: at first the DOL argued that Congress had not intended the law to apply to patient-workers (there was no reference to them in the legislative history); subsequently the DOL said the law did apply, but it had decided not to enforce it “because of the number of unresolved problems involved.” The suit’s focus was on forcing the Department of Labor to change its policy of not enforcing the Fair Labor Standards Act in respect to patient labor.
Two of the three original individual plaintiffs, Nelson Souder and Joseph Lagnone, were retarded; the third, Edwin Leedy was mentally ill, a long term resident of Haverford State Hospital, and died while the suit was being brought. Also serving as plaintiffs were the American Association on Mental Deficiency and the National Association for Mental Health. The American Federation of State, County and Municipal Employees (which in its brief contended that unpaid patient labor was unfair competition for its own worker-members) joined as an “intervenor-plaintiff.”
The attorneys for the plaintiffs asked for, and won, summary judgment in their favor in federal district court as well as certification of the case as a class action applying to all patient-workers in non-federal institutions for the residential care of the mentally ill and mentally retarded. The judge noted although neither the statutory language nor the legislative history of the 1966 amendments to the Fair Labor Standards Act made any reference to the status of patient-workers, “the words of the statute here in question say simply that ’employ’ means ‘to suffer or permit to work,’ that ’employer’ specifically includes a hospital, institution, or school’ for the residential care of the mentally ill. The terms of the Fair Labor Standards Act have traditionally been broadly construed and Congress is not only aware of but has approved of such broad construction. Economic reality is the test of employment and the reality is that many of the patient-workers perform work for which they are in no way handicapped and from which the institution derives full economic benefit.” The judge concluded that “Congress did not exclude patient-workers from coverage and, therefore, the Court cannot do so.”
The judge further pointed out that the present officially stated policy of the Department of Labor was that “patient-workers may be considered employees under the statute,” and cited “difficulties” in enforcement as the reason for its failure to do so. But, the judge ruled, “administrative burden is no excuse for failure to implement the statutory mandate” and “the Secretary of Labor has a duty to implement reasonable enforcement efforts applying the minimum wage and overtime compensation provisions of the Fair Labor Standards Act to patient-workers…”
In a footnote the judge dismissed the argument that patient-work should be considered a form of therapy. Work was therapeutic for most people in providing a sense of accomplishment but “that can hardly mean that employers should pay workers less for what they produce for them.”
The possibly negative effects of the ruling were also relegated to a footnote. The judge noted that there were “questions as to whether extension of coverage will in the long run be in the best interests of the patient-workers and the public” given the “significantly increased costs for the operation of institutions” that may result.
Souder v. Brennan changed the basic operating rules of mental hospitals in such a way as to further promote radical deinstitutionalization. Traditionally, large mental hospitals depended on the unpaid labor of patients in kitchens, dining rooms, laundries, farms, dairies, even on-site factories. A Harvard Law Review article (by Paul Friedman, who brought the suit) quotes one hospital superintendent in the early 1960s who observed that “The economy of a mental hospital is based on ‘patient labor.”…[Without] it the hospital…would collapse.”
Even with unpaid patient labor, state hospitals absorbed a significant portion of state budgets and beginning in the 1950s state legislators and officials openly called for ending the heavy burden the large institutional population imposed on taxpayers. The Souder decision, by requiring institutions either to pay patients or use non-patient personnel to perform the tasks formerly left to patients, made mental hospitals vastly more expensive to operate, so that cutting down their size seemed even more essential.
While some states initially reacted to the Souder decision by paying some patient-workers (while limiting the hours they worked), most states, citing budget constraints, simply eliminated patient labor. This has remained the situation, even though, as mental health law expert Michael Perlin points out, in 1976 the Supreme Court undercut the Souder decision in its holding, in National League of Cities v. Usery, that those sections of the federal Fair Labor Standards Act that had extended minimum wage protections to employees of states were unconstitutional. The Department of Labor therefore returned to its original position of not enforcing the Act in respect to patient-labor in state mental hospitals.
The Souder case has proved one of the most destructive to patient welfare of all the cases brought by the mental health bar. Careless Congressional legislation opened the way for the mental health bar, since, given the absence of any mention of patient-labor in the legislative history, it seems clear that Congress thought it was extending FLSA protections to workers in institutions for the mentally ill and developmentally disabled, and the possible implications for patient-labor had not occurred to those who voted for the legislation.
Thanks to Souder, enforced idleness has become one of the worst features of mental hospitals and a standard complaint of commissions investigating state hospitals has been (in the words of a New York commission) “the total lack of occupation” on the wards. Yet there are few principles more broadly accepted than the therapeutic value of labor which, from the pristine days of moral treatment, was considered the capstone of therapy. Emil Kraepelin, the father of biological psychiatry, summed up the general view: “Every experienced alienist soon recognizes the worth of meaningful activity, especially farming and gardening, in the treatment of mental patients.”
Ironically, the most exhaustive and eloquent descriptions of the importance of work in the lives of hospitalized mental patients has come from proponents of Souder within the mental health bar. In a lengthy 1976 article in the Seton Hall Law Review on the vital role of work in therapy, Michael Perlin contended that stoppage of work programs violated the patient’s right to treatment because unemployment leads to “passivity, apathy, anomie, listlessness, dissociation, lack of interest and of caring.” Work programs, he wrote, were “such an integral and essential component of therapy” that the termination of work programs posed a threat to the safety of residents, resulting “in a dangerous and unhealthy atmosphere, violating “the patients’ constitutional right to freedom from harm.” Indeed, once they had outlawed patient labor, some members of the mental health bar brought suit to impose it. A New Jersey suit to force hospitals to employ patients at prevailing commercial wage rates resulted in a consent degree, but in the absence of funds to pay them, no enforcement.
The question arises why, given the Supreme Court’s 1976 decision overturning Souder mentioned earlier, the states did not reinstate patient labor. Even Souder offered a loophole, for it held open the possibility of hospital administrators deducting from patient pay the cost of their care.
The probable answer is fear of additional lawsuits. A year prior to Souder, the judge in Wyatt v. Stickney had outlawed unpaid work (with a specific exception permitting the patient to make his own bed) on the principle that work was “dehumanizing” unless it was voluntary, therapeutic and compensated at FLSA wage rates. And he had held that the state could not give with one hand and take away with another, by taking back the wages as payment for care. Other suits had been brought charging that “institutional peonage” violated the 13th amendment outlawing slavery. Unable to pay the wage rates demanded, state officials found it was easier to eliminate patient labor than run the legal risks of continuing or resuming it.
Perlin concedes that Souder resulted in “a total elimination of work programs in many institutions” but claims with is “clearly not foreseen” and “no fault of its proponents.” This is hard to swallow. The attorneys who brought Souder, as well as the other “peonage” suits were well aware of the financial constraints under which state hospitals operated. In other forums they made clear that their real goal was to empty institutions, not improve the way they were run.
Souder v. Brennan, 367 F. Supp. 808 (D.D.C. 1973)