Under FLSA, an "`employee' is defined as `any individual employed by an employer.'" Alexander v. SARA, 721 F.2d 149, 150 (5th Cir. 1983) (quoting 29 U.S.C. § 203(e)(1)(1982)). An employer is "one who acts `directly or indirectly in the interest of an employer in relation to an employee.'"

974 F.2d at 809. See also Gilbreath, 931 F.2d at 1331 (no employment relationship because "inmate labor belongs to the institution") (concurring opinion); Harker v. State Use Indus. Envelope Shop Inmates, 990 F.2d 131, 133 (4th Cir. Mar. 24, 1993) (quoting Vanskike; citing Gilbreath); Alexander v. SARA, Inc., 721 F.2d 149, 150 (5th Cir. 1983) ("there was no employer-employee relationship, because the inmates' labor belonged to the penitentiary"). Cf. Alvarado Guevara v. INS, 902 F.2d 394, 396 (5th Cir. 1990) (INS detainees who "are under the direct supervision and control of a government entity should not be protected under the FLSA").

Other courts in prisoner cases have also looked to these factors in determining whether an employment relationship exists. See Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir. 1984); Alexander v. Sara, Inc., 559 F. Supp. 42, 43-44 (M.D.La.), aff'd, 721 F.2d 149 (5th Cir. 1983); Sims v. Parke Davis Co., 334 F. Supp. 774, 787 (E.D.Mich.), aff'd, 453 F.2d 1259 (6th Cir. 1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1196, 31 L.Ed.2d 254 (1972); Hudgins v. Hart, 323 F. Supp. 898, 899 (E.D.La. 1971). Appellees argue that we should not reach the economic reality issue, claiming the FLSA does not apply to prison inmates as a class.

ANALYSIS Keating v. Shell Chemical Co., 610 F.2d 328 8 U.S.C. § 1555 95-86 91 Stat. 426 29 U.S.C. § 203 29 U.S.C. § 202 Alexander v. Sara, Inc., 559 F. Supp. 42 aff'd. 721 F.2d 149Alexander v. Sara, Inc., 559 F. Supp. 42 aff'd. 721 F.2d 149 Sims v. Parke Davis Co., 334 F. Supp. 774 aff'd. 453 F.2d 1259 cert. denied, 405 U.S. 978 92 S.Ct. 1196 31 L.Ed.2d 254 Worsley v. Lash, 421 F. Supp. 556 See also Lavigne v. Sara, Inc., 424 So.2d 273 721 F.2d at 150 Id. 8 U.S.C.A. § 1555 8 U.S.C.A. § 1555 See generally Mathews v. Diaz, 426 U.S. 67 96 S.Ct. 1883 48 L.Ed.2d 478 Fiallo v. Bell, 430 U.S. 787 97 S.Ct. 1473 52 L.Ed.2d 50 Hampton v. Mow Sun Wong, 426 U.S. 88 96 S.Ct. 1895 48 L.Ed.2d 495 Plaintiffs Jose Rudolfo Alvarado Guevara, Luis Miguel Dominquez Mendoza, Elidio Escobar, Jose Dennis Flores Medrano, Juan Francisco Garcia Perez, Carlos Eduardo Gonzalez Cruz, Virgilio Tapia Rodas, Henry Vasquez Cruz, Encarnacion Calderon Valdizon, Carlos Humberto Campos Ortiz, Hector Najarco Alas, Cristobal Osorio Machado, Edwin Perez Valle, Jose Daniel Sullivan Lopez, Jose Vergara Hernandez, and Luis Arturo Zelaya Martinez (hereinafter "Plaintiffs") have brought suit against Def

See42 U.S.C. § 12111(5)(A).See, e.g., Hale, 993 F.2d at 1395 (prisoner is not an employee under the Fair Labor Standards Act (FLSA)); Morgan v. MacDonald, 41 F.3d 1291, 1293 (9th Cir.1994) (same); Alexander v. Sara, Inc., 721 F.2d 149, 150 (5th Cir.1983) (per curiam) (same); Coupar v. Dep't of Labor, 105 F.3d 1263, 1267 (9th Cir.1997) (prisoner not an employee within the meaning of the whistleblower provisions of the Clean Air Act and the Toxic Substances Control Act); Williams v. Meese, 926 F.2d 994, 997 (10th Cir.1991) (prisoner not an employee under Title VII or the Age Discrimination in Employment Act). But see Baker v. McNeil Island Corr. Ctr., 859 F.2d 124, 128 (9th Cir.1988) (prisoner potentially an employee under Title VII); Carter v. Dutchess Comm. Coll., 735 F.2d 8, 14 (2d Cir.1984) (prisoner may be an employee under FLSA).The leading case in our circuit is our en banc decision in Hale, 993 F.2d 1387.

Prisoners working inside prison for private employers are not employees under the FLSA. Alexander v. Sara, Inc., 721 F.2d 149, 150 (5th Cir. 1983). Further, work-release prisoners working outside the prison for a private employer are not FLSA employees of the prison.

We have also held that inmates who work inside a prison for a private enterprise are not FLSA employees of the private company. Alexander v. Sara, Inc., 721 F.2d 149, 150 (5th Cir. 1983). However, until today we have not expressly stated whether there is any FLSA employment relationship between the prison and its inmates working in and for the prison.

The circuit courts express some disagreement over whether the FLSA was meant by Congress to cover prisoners in the first instance. See, e.g., Alexander v. Sara, Inc., 721 F.2d 149 (5th Cir. 1983) (upholding determination that inmates working at prison plasma facility were not covered by FLSA, based in part on finding that Congress had not contemplated extension of FLSA to inmates); Sims v. Parke Davis Co., 453 F.2d 1259 (6th Cir.), cert. denied, 405 U.S. 978, 92 S.Ct. 1196, 31 L.Ed.2d 254 (1971) (observing that FLSA was probably not meant to apply to prisoners working in operations conducted on prison grounds by outside businesses). But see Hale v. Arizona, 993 F.2d 1387 (9th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 386, 126 L.Ed.2d 335 (1993) (noting that prisoners were not included in extensive list of workers expressly exempted from FLSA, and therefore concluding that excluding them from Act's coverage would be encroachment upon legislative prerogative); Carter v. Dutchess Comm. College, 735 F.2d 8 (2d Cir. 1984) (same).

. . ."), cert. denied, ___ U.S. ___, 113 S.Ct. 1303, 122 L.Ed.2d 692 (1993); Miller v. Dukakis, 961 F.2d 7 (1st Cir.) ("The courts have uniformly denied FLSA coverage . . . to convicts who work for the prisons in which they are inmates."), cert. denied, ___ U.S. ___, 113 S.Ct. 666, 121 L.Ed.2d 590 (1992); Alexander v. Sara, Inc., 721 F.2d 149 (5th Cir. 1983) (affirming district court finding that "extension [of the FLSA] to the prison inmate was not legislatively contemplated"); Emory v. U.S., 2 Cl.Ct. 579 ("Prisoners are not employees, within the meaning of the Fair Labor Standards Act."), aff'd, 727 F.2d 1119 (Fed. Cir. 1983).

For example, it may be that in the case of various prison industry programs, the relationship between the prisoner, the prison, and the outside employer is not such that application of the FLSA would be appropriate. See, e.g., Harker v. State Use Indus., 990 F.2d 131, 133, 135 (4th Cir., cert. denied, ___ U.S. ___, 114 S.Ct. 238, 126 L.Ed.2d 192 (1993) (prisoners participating in state-run prison industry not covered by FLSA); Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1325-27 (9th Cir. 1991) (inmates working at private plasma center inside prison not covered by FLSA); Alexander v. Sara, Inc., 721 F.2d 149, 150 (5th Cir. 1983) (inmates working at private laboratory inside prison not covered by FLSA). But we do not decide that question today.