Compulsory Labor in a National Emergency: Public Service or Involuntary Servitude? The Case of Crippled Ports

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. 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. But the Supreme Court created 13th Amendment exceptions for transportation work. Robertson upholds a law that bars merchant seamen from quitting work, and imprisons deserters. Butler permits states to conscript citizens to work on highways, on pain of imprisonment. Dock work is similar because ports integrate ships and trucks in a transportation hub. Courts now apply these precedents to new compulsory activities, such as mandatory public service for graduation. Moreover, Kozminski reaffirmed Robertson and Butler as precedents. Thus, the Constitution would be unlikely to 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 emergency, we invariably come to regret it.

Employer Treatment of Permanently Replaced Strikers, 1935-1991: Public Policy Implications

Employer hiring of permanent replacements for economic strikers has become one of the most controversial labor law issues since the early 1980s. While such hirings have occurred for over a century in the United States and were recognized as lawful in 1938 by the Supreme Court, the extensive use and threat to use permanent replacements by major U.S. employers during the 1980s and early 1990s have intensified attention and debate surrounding the issue

Certified Nursing Assistant Turnover in the Long-Term Care Facility Industry

Employee turnover in long-term care facilities results in increased operational costs and a reduction in the quality of care delivered. The purpose of this correlational study was to investigate the relationships between employee turnover intention of certified nursing assistants working in long-term care facilities and employee compensation, engagement, job satisfaction, motivation, perceived work stress during the COVID-19 pandemic, and work environment. The population of interest consisted of CNAs over the age of 17, with at least two years of experience working in the central Texas long-term care industry. Herzberg’s motivation-hygiene theory served as the theoretical framework underpinning this study. Multiple linear regression analyses and Spearman’s rank-order correlation coefficient were used to predict employee turnover. The six predictor variables accounted for approximately 66% of the variance in turnover intention and the result was statistically significant (R² = .657, F(6,385) = 125.65, p \u3c .001). The multiple regression model accounted for significantly more variance in turnover intention than would be expected by chance. Correlation tests resulted in statistically significant inverse relationships between the predictor variable of turnover intention and each of the six predictor variables. The findings of this study may be advantageous to long-term care facility leaders as they evaluate and amend their retention strategies that are designed to decrease turnover intention. By serving to diminish turnover intention, this study may help to improve the quality of care delivered and reduce operational costs that negatively impact the lives of both long-term care employees and the residents under their supervision

Bare Minimum: Stripping Pay for Independent Contractors in the Share Economy

My study explores a small but revealing corner of the share economy, where an individual’s private resources are bartered for limited use by others in exchange for compensation. Strip clubs create value for owners by commoditizing sexual labor. Clubs avoid employment in favor of independent contracting with dancers. They pay no wages or benefits; patrons pay dancers with fees and tips. But clubs extract entry fees from dancers who work; require them to rent dressing rooms and stage time; and compel them to share tips with DJs, emcees, house moms, bouncers, and bartenders. My research identified seventy-five federal and state court rulings on wage claims by exotic dancers. In thirty-eight cases, courts ruled that dancers were employees; only three courts ruled that dancers were independent contractors. Courts often awarded dancers minimum wages, overtime, and liquidated damages. My research relates more generally to labor in the share economy. Strip clubs epitomize a trend away from wage based employment in favor of independent contractor agreements for a transient and rootless workforce. The share economy model for work takes advantage of the poor bargaining power of individuals, while failing to pay workers minimum wages, overtime under federal and state law, employment taxes, and mandated employment benefits

Refusing Work To Avoid Serious Injury or Death: An Empirical Study of Legal Protections Before and During COVID-19

I present data on court and administrative rulings involving employees who were disciplined or quit after refusing to work due to concerns about death or injury. My sample of 109 pre-pandemic cases from 1944–2020, and its comparison to twelve COVID-19 cases in 2020 and 2021, shows an emerging picture of new forms of work refusal. The cases before COVID-19 were concentrated in mining, construction, and transportation. In contrast, the COVID-19 cases span new occupations in social services, education, law, healthcare, protective services, food preparation, and building cleaning. Before COVID-19, employees lost most work refusal cases because laws such as the National Labor Relations Act, Occupational Safety Health Act, and others narrowly protect them from employer retaliation. In the past year, the Emergency Paid Sick Leave Act afforded workers broader protections; however, it expired at the end of 2020. I conclude that work refusal laws are out of date in today’s workplace because they apply mostly to work refusal in mines, construction, and trucking—male-dominated workplaces, with 10% to 30% female workers. These industrial settings do not reflect changes in the economy that have expanded jobs in service and office sectors or the growth of gig work that falls outside the protections of work refusal statutes