Souder v. Brennan, 367 F. Supp. 808(D.D.C. 1973)

Key Issue:  “minimum wageand overtime compensation provisions of the Fair Labor Standards Act apply topatient-workers of non-federal hospitals, homes and institutions for the mentally retardedand mentally ill”


The court ruled that notwithstanding claims that work istherapeutic, patient-workers at non-federal institutions are “employees” coveredby the minimum wage and overtime compensation provisions of the Fair Labor Standards Act.


The issue of mental patient labor had first been brought topublic attention by Lewis Bartlett in a July 1964 article in The Atlantic Monthly”Institutional Peonage: Our Exploitation of Mental Patients.” Nine years laterthis case, seeking the status of employees for patient-workers, was brought by PaulFriedman, 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 FairLabor Standards Act (FLSA) which revised the meaning of “enterprise” toexplicitly extend the FLSA’s coverage to employees of public and private non-Federalhospitals and institutions for the residential care of the mentally ill. The Department ofLabor (DOL) determined it would not enforce the Act in respect to patient-workers. Itshifted its ground for the decision: at first the

DOL argued that Congress had not intended the law to applyto 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 onforcing the Department of Labor to change its policy of not enforcing the Fair LaborStandards Act in respect to patient labor.

Two of the three original individual plaintiffs, NelsonSouder and Joseph Lagnone, were retarded; the third, Edwin Leedy was mentally ill, a longterm resident of Haverford State Hospital, and died while the suit was being brought. Alsoserving as plaintiffs were the American Association on Mental Deficiency and the NationalAssociation for Mental Health. The American Federation of State, County and MunicipalEmployees (which in its brief contended that unpaid patient labor was unfair competitionfor its own worker-members) joined as an “intervenor-plaintiff.”

The Decision:

The attorneys for the plaintiffs asked for, and won,summary judgment in their favor in federal district court as well as certification of thecase as a class action applying to all patient-workers in non-federal institutions for theresidential care of the mentally ill and mentally retarded. The judge noted althoughneither the statutory language nor the legislative history of the 1966 amendments to theFair Labor Standards Act made any reference to the status of patient-workers, “thewords of the statute here in question say simply that ’employ’ means ‘to suffer or permitto work,’ that ’employer’ specifically includes a hospital, institution, or school’ forthe residential care of the mentally ill. The terms of the Fair Labor Standards Act havetraditionally been broadly construed and the Congress is not only aware of but hasapproved of such broad construction. Economic reality is the test of employment and thereality is that many of the patient-workers perform work for which they are in no wayhandicapped and from which the institution derives full economic benefit.” The judgeconcluded that “Congress did not exclude patient-workers from coverage and,therefore, the Court cannot do so.”

The judge further pointed out that the present officiallystated policy of the Department of Labor was that “patient-workers may be consideredemployees under the statute,” and cited “difficulties” in enforcement asthe reason for its failure to do so. But, the judge ruled, “administrative burden isno excuse for failure to implement the statutory mandate” and “the Secretary ofLabor has a duty to implement reasonable enforcement efforts applying the minimum wage andovertime compensation provisions of the Fair Labor Standards Act topatient-workers…”

In a footnote the judge dismissed the argument thatpatient-work should be considered a form of therapy. Work was therapeutic for most peoplein providing a sense of accomplishment but “that can hardly mean that employersshould pay workers less for what they produce for them.”

The possibly negative effects of the ruling were alsorelegated to a footnote. The judge noted that there were “questions as to whetherextension of coverage will in the long run be in the best interests of the patient-workersand the public” given the “significantly increased costs for the operation ofinstitutions” that may result.


Souder v. Brennan changed the basic operating rules ofmental hospitals in such a way as to further promote radical deinstitutionalization.Traditionally, large mental hospitals depended on the unpaid labor of patients inkitchens, dining rooms, laundries, farms, dairies, even on-site factories. A Harvard LawReview article (by Paul Friedman, who brought the suit) quotes one hospital superintendentin 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 asignificant portion of state budgets and beginning in the 1950s state legislators andofficials openly called for ending the heavy burden the large institutional populationimposed on taxpayers. The Souder decision, by requiring institutions either to paypatients or use non-patient personnel to perform the tasks formerly left to patients, mademental hospitals vastly more expensive to operate, so that cutting down their size seemedeven more essential.

While some states initially reacted to the Souder decisionby paying some patient-workers (while limiting the hours they worked), most states, citingbudget constraints, simply eliminated patient labor. This has remained the situation, eventhough, as mental health law expert Michael Perlin points out, in 1976 the Supreme Courtundercut the Souder decision in its holding, in National League of Cities v. Usery, thatthose sections of the federal Fair Labor Standards Act that had extended minimum wageprotections to employees of states were unconstitutional. The Department of Labortherefore returned to its original position of not enforcing the Act in respect topatient-labor in state mental hospitals.


The Souder case has proved one of the most destructive topatient welfare of all the cases brought by the mental health bar. Careless Congressionallegislation opened the way for the mental health bar, since, given the absence of anymention of patient-labor in the legislative history, it seems clear that Congress thoughtit was extending FLSA protections to workers in institutions for the mentally ill anddevelopmentally disabled, and the possible implications for patient-labor had not occurredto those who voted for the legislation.

Thanks to Souder, enforced idleness has become one of theworst features of mental hospitals and a standard complaint of commissions investigatingstate hospitals has been (in the words of a New York commission) “the total lack ofoccupation” on the wards. Yet there are few principles more broadly accepted than thetherapeutic value of labor which, from the pristine days of moral treatment, wasconsidered the capstone of therapy. Emil Kraepelin, the father of biological psychiatry,summed up the general view: “Every experienced alienist soon recognizes the worth ofmeaningful activity, especially farming and gardening, in the treatment of mentalpatients.”

Ironically, the most exhaustive and eloquent descriptionsof the importance of work in the lives of hospitalized mental patients has come fromproponents of Souder within the mental health bar. In a lengthy 1976 article in the SetonHall Law Review on the vital role of work in therapy, Michael Perlin contended thatstoppage of work programs violated the patient’s right to treatment because unemploymentleads to “passivity, apathy, anomie, listlessness, dissociation, lack of interest andof caring.” Work programs, he wrote, were “such an integral and essentialcomponent of therapy” that the termination of work programs posed a threat to thesafety of residents, resulting “in a dangerous and unhealthy atmosphere, violating”the patients’ constitutional right to freedom from harm.” Indeed, once they hadoutlawed patient labor, some members of the mental health bar brought suit to impose it. ANew Jersey suit to force hospitals to employ patients at prevailing commercial wage ratesresulted in a consent degree, but in the absence of funds to pay them, no enforcement.

The question arises why, given the Supreme Court’s 1976decision overturning Souder mentioned earlier, the states did not reinstate patient labor.Even Souder offered a loophole, for it held open the possibility of hospitaladministrators deducting from patient pay the cost of their care.

The probable answer is fear of additional lawsuits. A yearprior to Souder, the judge in Wyatt v. Stickney had outlawed unpaid work (with a specificexception permitting the patient to make his own bed) on the principle that work was”dehumanizing” unless it was voluntary, therapeutic and compensated at FLSA wagerates. And he had held that the state could not give with one hand and take away withanother, by taking back the wages as payment for care. Other suits had been broughtcharging that “institutional peonage” violated the 13th amendment outlawingslavery. Unable to pay the wage rates demanded, state officials found it was easier toeliminate patient labor than run the legal risks of continuing or resuming it.

Perlin concedes that Souder resulted in “a totalelimination of work programs in many institutions” but claims with is “clearlynot 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 wellaware of the financial constraints under which state hospitals operated. In other forumsthey made clear that their real goal was to empty institutions, not improve the way theywere run.