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U.S. must clarify workers' responsibilities in national emergencies

Mark Reutter, Business & Law Editor
217-333-0568; mreutter@uiuc.edu

2/23/2006

Michael H. LeRoy
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University of Illinos Photo
Michael H. LeRoy, a professor of law and of labor and industrial relations, says the legal questions regarding compulsory work during a man-made or natural catastrophe have not been settled.

CHAMPAIGN, Ill. — How far can the government go in forcing civilians to perform potentially life-threatening jobs during a national emergency?

The legal questions regarding compulsory work during a man-made or natural catastrophe have not been settled, Michael H. LeRoy, a professor at the University of Illinois Institute of Labor and Industrial Relations and College of Law, writes.

The issues he raises are far from academic. Last August, hundreds of New Orleans police officers abandoned their posts when Hurricane Katrina flooded the city, leaving tens of thousands of residents in jeopardy.

Furthermore, national policymakers have not studied the implications of how unionized U.S. dockworkers would react to a terrorist attack, even though controversy is swirling through Washington over the impending transfer of the operation of five U.S. ports to Dubai Ports World, a Middle Eastern company.

“Future national emergencies are increasingly likely to blur the line that now separates civilian and military labor,” LeRoy wrote. “Dockworkers and doctors, poultry farmhands and pharmaceutical workers, and other civilians may become foot soldiers.”

Military and security planners have done little to examine how civilians might respond to attacks that place them directly in jeopardy – and what are the rights and limitations of government action in such emergencies.

In his paper, LeRoy put forward a scenario in which radioactive “dirty bombs” are set off at ports that handle containerized freight.

Dockworkers who load and unload the ships flee, and officials of the International Longshore Workers Union demand radiation-proof hazmat suits before their employees will return. (Nearly all U.S. dockworkers are members of the ILWU.)

It is unclear if the government has the legal authority to compel workers back to the piers, given the constitutional ban on involuntary servitude (13th Amendment) and the right of employees to refuse to work on safety and health grounds (1970 Occupational Safety and Health Act).

During World War II, Congress passed the War Labor Disputes Act that required civilian employees to give a 30-day notice before discontinuing work. Although strikes were prohibited during the war, they did occur.

The 1947 Taft-Hartley Act gave the U.S. president emergency power to obtain a court injunction against a threatened or actual strike that he believed would imperil the nation’s economy. But as LeRoy pointed out, nearly all Taft-Hartley disputes have involved issues of wages and hours, not an employee’s personal safety or health.

Over the years, the Supreme Court has upheld narrowly drawn laws that require citizens to work against their will. One ruling allowed states in the early 20th century to conscript “able-bodied men” to repair public roads before the advent of state roads departments. Another denied merchant seamen the right to abandon ship.

These and related court rulings, though, have little relevance to the potential disruption of a terrorist attack or natural catastrophe, LeRoy wrote. Job abandonment became a serious problem during the flooding of New Orleans.

As many as 200 police officers abandoned their posts after Hurricane Katrina struck the city last August. New Orleans’ new police superintendent subsequently fired many of the officers. Undoubtedly, a number of the officers will sue for their jobs back, in some cases citing permission by department superiors to evacuate the city.

A report issued by the Congressional Budget Office last December suggested that something similar could happen with an avian flu outbreak.

“A pandemic would likely affect work attendance in a way that would place the country at risk,” LeRoy wrote. Thousands of workers would likely stay away from work, in fear of their lives, while surging demand for medical treatment would overwhelm medical teams and pharmaceutical plants.

”Clearly the government has a compelling interest in worker attendance at pharmaceutical facilities and medical centers. But could the U.S. force sick people to run key operations? And could the War Labor Disputes Act be used to coerce healthy people to work when they fear exposure to a contagious and lethal disease?”

The Illinois scholar recommended that the Homeland Security and U.S. Defense departments – as well as Congress – clarify these legal questions as soon as possible.

The issue has taken on greater urgency with the pending transfer of public
marine-terminal operations at Baltimore, Miami, New Orleans, New York-New Jersey and Philadelphia by Dubai Ports World.

The company, partly owned by the government of Dubai, one of the United Arab Emirates, is in the process of purchasing the port operations from Peninsular & Oriental Steam Navigation Co., a British concern.

LeRoy’s working paper is titled, “The 13th Amendment in National Emergencies: When Civilian Workers Become Foot Soldiers."