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- Title
Compulsory Labor in a National Emergency: Public Service or Involuntary Servitude? The Case of Crippled Ports.
- Authors
Leroy, Michael H.
- Abstract
The 13th Amendment ban on involuntary servitude has new relevance as the U.S. grapples with national emergencies such as catastrophic hurricanes, flu pandemics, and terrorism. This Article considers work refusal and coerced work performance in life-threatening employment contexts. Overwhelmed by fear, hundreds of police officers and health care workers abandoned their jobs during Hurricane Katrina. Postal clerks worked against their will without masks in facilities with anthrax. A report by Congress worries that avian flu will cause sick and frightened medical personnel to stay away from work, thus jeopardizing a coherent response to a crisis. How far can the U.S. go in forcing reluctant civilians to perform essential jobs during a national emergency? I explore solutions to this question by hypothesizing a large release of radiation—whether by terror attack, or catastrophic accident, or major earthquake—in a vital Pacific port. These ports have a history of work stoppages that disrupt the nation's economy. I examine federal government responses if dock workers refused assignments until conditions were safe: (1) The President could declare a national emergency labor dispute under the Taft-Hartley Act, and seek an 80-day back-to-work injunction. (2) Congress could re-enact Section 8 of the War Labor Disputes Act, making it unlawful for dock workers to discontinue production for 30 days and subjecting violators to coercive damages. (3) The president could issue strong executive orders that mandate continued work and authorize imprisonment for noncompliance. At the heart of my analysis, I ask: Would any of these responses violate the Thirteenth Amendment ban on involuntary servitude? Congress and the judiciary have broadened this law, and its enforcement counterpart in 18 U.S.C. § 1584, beyond the abolition of African slave-holding. The Supreme Court in Kozminski defined involuntary servitude as forcing a person to work by physical or legal coercion. The Supreme Court narrowed the broad ban on involuntary servitude, however, by creating exceptions for transportation work. In Robertson, the Court upheld a law barring merchant seamen from quitting work and imprisoning deserters. Similarly, Butler permits states to conscript citizens to work on highways, and to imprison workers who refuse. Both of these cases are applicable to dock work, since ports integrate ships and trucks in a transportation hub. Courts now apply these precedents to new compulsory activities, such as mandatory public service in order to graduate from a school or program. As a result of these Supreme Court cases, it is unlikely that the Constitution would shield dock workers from involuntary labor. This has troubling implications for employees who have recently worked in national emergencies, and may do so again. Employees who work to alleviate avian flu or other catastrophic health threats are also at risk for compulsory labor that exposes them to extraordinary hazards. I conclude with a legislative proposal to strengthen individual rights. As my research shows, courts that are presented with national emergency disputes rarely side with the individual who stands in the way of the public's welfare. Without a more balanced labor policy to address emerging crises, the nation may realize belatedly "that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it." Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
- Subjects
UNITED States; CONSTITUTIONAL amendments; MEDICAL care; EMPLOYEES; HURRICANE Katrina, 2005; ANTHRAX; AVIAN influenza; DISASTERS; POLICE; TERRORISM
- Publication
Berkeley Journal of Employment & Labor Law, 2007, Vol 28, Issue 2, p331
- ISSN
1067-7666
- Publication type
Article