In a forthcoming paper, Michael H. LeRoy, a professor in the Institute of Labor and Industrial Relations and in the College of Law, simulated a case of a workplace that was contaminated by radiation, prompting fearful workers to ignore orders to perform essential duties.
CHAMPAIGN, Ill. – Updating and clarifying the role of civilian workers in times of national emergencies is a pressing need that would improve homeland security, a University of Illinois legal scholar says.
In a forthcoming paper, Michael H. LeRoy, a professor in the Institute of Labor and Industrial Relations and in the College of Law, simulated a case of a workplace that was contaminated by radiation, prompting fearful workers to ignore orders to perform essential duties.
He pointed out that neither the president nor Congress has tackled the legal ramifications of forcing civilians to perform tasks during a terrorist attack, flu pandemic, catastrophic accident or destructive act of nature.
The president can declare a national emergency during a labor dispute under the 1948 Taft-Hartley Act and seek an 80-day back-to-work injunction. But this legal tool is only available in the case of private-sector jobs. “Thus,” LeRoy wrote, “the U.S. has limited jurisdiction over critical jobs in a national emergency work stoppage.”
State and local governments have authority over the employment practices of many public workers, including police, firefighters and sanitation workers.
New Orleans took no legal action to force police officers to continue working in the aftermath of Hurricane Katrina in part because the city was too devastated for the courts to remain open. An 1878 law, the Posse Comitatus Act, restricts the use of federal troops in domestic crises, which limited the potential deployment of U.S. armed forces in response to Katrina.
There are other legal hurdles that “have new relevance as the U.S. grapples with national emergencies,” according to LeRoy.
These include a 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).
“A report by Congress worries that avian flu will cause sick and frightened medical personnel to stay away from work, jeopardizing a coherent response to a crisis,” he wrote.
In his paper, the Illinois scholar recommends that Congress clarify the laws on requiring civilians, such as emergency doctors, nurses, police, pharmaceutical plant workers and longshoremen, to work under conditions that could expose them to life-threatening hazards.
Without legislative action, a future crisis will have to be resolved by the courts, which historically have overridden individual rights in the name of public welfare. Without a more nuanced labor policy, the nation risks being unprepared in a major crisis, while individual workers risk being unduly exposed to extraordinary risks.
His paper, forthcoming in the Berkeley Journal of Employment & Labor Law, is titled, “Compulsory Labor in a National Emergency: Public Service or Involuntary Servitude? The Case of Crippled Ports.”
