LeRoy on Compulsory Labor in a National Emergency

Michael LeRoy (Ilinois) has posted on the bepress Legal Repository his new piece entitled: Compulsory Labor in a National Emergency: Public Service or Involuntary Servitude? The Case of Crippled Ports.

Here's a taste of the 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, backed by imprisonment, that regulate employment in ports.

***************************************************************************
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 emergency, we invariably come to regret it.”

This is a timely piece in light of the labor implications of Hurricane Katrina and also sheds light on the often-overlooked national emergency provisions of Taft-Hartley and the West Coast port dispute from a few years back.  You can download this piece at this link.

PS