TN 22 (04-01)

Citations:

Sections 218(c)(6)(B) , 210(a)(6)(A) and 210(a)(7)(F)(2) of the Social Security Act;

Regulation No.4, Sec. 404.1018(c)(1) ; 404.1020(a)(3)(ii) ; and 404.1021(b)(1) .

A. BACKGROUND

The Department of Justice is responsible for the Prison Industry Enhancement Certification Program (PIECP). A requirement of PIECP is that projects provide inmate workers with benefits comparable to those made available by the Federal or State government to private sector employees—including Social Security benefits where applicable.

B. POLICY

1. Prison inmates in the employ of a State or political subdivision, or any instrumentality thereof, are excluded from Social Security coverage.

   Prison inmates in the employ of the private sector may be covered under Social Security.

2. To determine if Social Security coverage exists, we must determine if an employer/employee relationship exists between the entity for which the inmate services are provided and the inmate worker.

   SSA determines the employer under the common-law control test in 20 CFR 404.1007 http://policynet.ba.ssa.gov/repository/cfr20/404/404-1007.htm

   The relevant factor for determining coverage is whether an employer/employee relationship exists between the inmate worker and the non-governmental employer, not the place where the inmate is incarcerated.

3. An employer/employee relationship exists when the entity for which the inmate performs services has the right to control and direct the inmate worker regarding the desired result of the work done and the details and means by which the work is accomplished.

   This includes the ability of the employer to select, dismiss, and control the worker inmate.

   NOTE: The relationship between the inmate worker and the entity for which services are performed may arise solely from the incarceration of the inmate and the duty of the prison to provide rehabilitative labor.

   Compensation for these inmate services is based on a relationship created by force and operation of the law due to the inmate's conviction of a crime, not by mutual consent. There is no employment relationship existing between the inmate and the prison.

   Under these circumstances, inmate services are not covered under Social Security.

C. REFERENCES

• Employer-Employee Relationship, RS 02101.000 ff.

• State and Local Coverage, RS 01505.000 ff.

• Wages, RS 01400.000 ff.