Over 1,000 incarcerated workers fought the fires that devastated Los Angeles last winter. Each day, they earned less than a quarter of what the average non-incarcerated firefighter makes in a single hour. These miniscule wages save the state of California around $90 million a year. Meanwhile, due to the lack of basic worker protections afforded to incarcerated firefighters, they face a much higher risk of injury and exposure to harmful particulate matter than the average firefighter.

Confronted with such poor wages and dangerous working conditions, American workers have long turned to collective action to safeguard their interests. Yet for incarcerated workers, the right to organize and collectively bargain is often presumed dead. In 1975, in response to a growing labor movement at one of its prisons, the North Carolina Department of Corrections restricted inmates’ access to its internal mail system. The incarcerated organizers sued, arguing that the regulation, along with other restrictions, violated the First Amendment. In the ensuing 1977 case, Jones v. North Carolina Prisoners’ Labor Union, the Supreme Court declared that while incarcerated workers had a First Amendment right to identify as members of a union, their protections stopped there. In other words, their ability to organize, communicate, advertise, recruit, and coordinate may be subject to the regulations of their correctional institution.

As a result, incarcerated people are often left with three options: they work inside the prison, often for no wages at all; they face punishment for refusing to work; or they are chosen to work a paid job on the outside for paltry wages. This last category—so-called “work release” jobs—thus represents merely a small fraction of the labor performed by incarcerated workers. Yet, as I argue in this brief post, these outside roles also offer an opportunity for traditional labor unions to open new avenues for incarcerated worker organizing rights. Unions should test the strength of the legal boundaries between incarcerated labor and the “traditional” labor market that have been erected by decades of court precedent. To do this, they can attempt to include incarcerated workers in their organizing drives at fast food restaurants, factories, and other workplaces. If successful, these efforts would guarantee incarcerated workers organizing rights through the National Labor Relations Act and could strengthen organizing activity within prison walls. Thus, a union could “lend” its established statutory rights to incarcerated workers, who in turn could use such rights to expand organizing within prisons and jails.