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Out of Sight Should Not Mean Out of Mind

07/13/2010 09:12 am ET | Updated May 25, 2011

Last month Michael H. LeRoy, Professor in the School of Labor and Employment Relations and the College of Law at the University of Illinois at Urbana-Champaign, published a new study: "The New War Labor Paradigm: Civilians Who Work Like Soldiers and Soldiers Who Work Like Civilians-- How to Compensate for Death And Injuries?"

He examined the legal remedies that are available for soldiers and their civilian counterparts who are injured or killed in war zones. He identified tort claims and workers' compensation claims filed by both civilian employees and military personnel against private military firms and examined the outcomes of such litigation.

While he found it promising that courts have been willing to reject the immunity defenses asserted by private military firms, something I have written about previously, and allow trials, he still believes policymakers need to build a system that better compensates and addresses the claims of the civilian employees and uniformed military personnel.

To the extent most people think of these issues, if they think of them at all, people assume these issues are dealt with by the Defense Base Act, which is essentially workers compensation mandated by federal law for all contractors whose employees work overseas. But, in truth the reality is more complex. According to LeRoy:

Co-mingling military service and civilian labor raises new questions about legal remedies for Americans who are killed or injured serving their country. Consider the Halliburton truck drivers who delivered supplies to U.S. troops in Iraq. Six were killed after their convoy was ambushed in 2004. The day before, a similar convoy was attacked, killing a co-worker. The drivers contemplated a work stoppage until conditions were safer. Bowing to work orders, they met their fate (Flood, 2009). Survivors believed that job ads misrepresented the safety of work in Iraq. A judge rejected Halliburton's defense that it has immunity from suits as a government contractor. Thus, the survivors' legal claims are proceeding to trial.

Consider a reciprocal case, where soldiers served on a non-combat mission under a civilian contractor. As they worked at an Iraqi water treatment plant, they developed bloody noses-- a sign of poisoning from the sodium dichromate in pipes (Searcey, 2010).

Fearing long term effects from this deadly toxin, the soldiers sued KBR. An Indiana court will decide whether their claims are dismissed under the Feres doctrine-- a legal principle that bars tort recovery for injuries that arise during military service.

Death- and injury-benefit cases do more than raise technical legal questions. When courts award or deny monetary relief in these war labor cases, they decide whether civilians and soldiers perform "work" or "service." The distinction has profound consequences for compensating war losses.

LeRoy draws a distinction between private military firms and other military contractors.

The labor relations practices of PMF firms differ from other defense contractors. Boeing and Lockheed-Martin have union-represented employees. But firms such as Halliburton strongly resist unions (Halliburton Co., 1963; Halliburton Co., 1968; Freightmaster, Div. of Halliburton, 1970; Halliburton Services, 1977). They also avoid judicial accountability by requiring workers to arbitrate disputes (in re Halliburton, 2002). Certainly, other companies use union-suppression and litigation-avoidance strategies. But PMF firms differ by leveraging their close ties to government insiders (e.g., an Army Corps of Engineers officer lost her job after she objected to a large, no-bid contract to Halliburton [Eckholm, 2004; Witte, 2005]).

In short, private military firms use a war labor model that insulates them from external accountability. They do not deal with unions or courts, and they use political influence to avoid public accountability.

Prof. LeRoy suggests the following as possible public policy options.

● Option 1: Preserve the Status Quo. The present method for resolving death and injury claims does not necessarily need to change. Most civilians and service members are able to try cases in civil law courts. This means that judges are open-minded in responding to the new war labor paradigm. In other words, courts are not dismissing complaints simply because incidents occurred: (a) outside the U.S., (b) in active combat zones, and (c) in conjunction with military command. These three points are remarkable given that courts usually dismiss liability suits against contractors by applying immunity doctrines. In sum, courts are grappling with the new war labor paradigm but have ponderous methods to rule on claims.

● Option 2: Create a Federal Worker's Compensation Policy for Civilians Who
Work as Private Military Forces. Worker's compensation is an insurance system to replace lost wages, reimburse medical expenses, and provide a death benefit for workplace injuries. Called the grand compromise, it provides injured workers a timely remedy but also insulates employers from liability for damages, including costly punitive awards. The strict liability feature of worker's compensation would avoid the complex issues of causation that arise in war zone cases. The complexity is due to the joint control between military commanders and civilian managers. A strict liability system would simply compensate injuries and deaths that arose in the course of employment. Fault would be irrelevant. This would reduce the need for court adjudication. The fact that PMFs are employed by private firms strengthens the case for worker's compensation.
Ordinarily, all employers must provide for this benefit as a matter of law.

● Option 3: Encourage Extra-Territorial Application of Current State Worker's
Compensation Laws.
...
Worker's compensation laws that reach beyond the
state's borders would avoid messy tort litigation while paying appropriate benefits to
private military forces employees.

● Option 4: Improve the Compensation System for Soldiers Who Are Killed or
Injured While Serving with Private Contractors: In 2008, a federal program paid about
$4.7 billion every month to the survivors of Americans who died as a result of a service-
connected disability (U.S. GAO, Military and Veterans' Benefits (2009(b)).

In the Veterans' Benefits Improvement Act of 2008, Congress asked the GAO to compare these benefits to those for survivors of federal civilian workers. The report found military benefits were far less than those paid to civilians under federal worker's compensation.

This result suggests that a supplemental benefit should be considered for soldiers who die or are injured while working with a contractor. The theory behind this idea is that a service member's labor is co-mingled with the contractor's workforce. Thus, the soldier's labor contributes value to the contractor's service. In other words, when the integration of military and civilian labor creates commercial value, contractors might contribute to a fund that supplements these service member benefits. If funding were tied to experience ratings, contractors would be encouraged to adopt safer practices.

Prof. LeRoy's study illustrates the not infrequent examples of PMC worker and soldier vulnerability to PMC misdeeds, whether intentional or unwitting. In the old days workers had a solution for that. It was called a union. I can already hear PMC CEO's screaming that unions are clearly inapplicable. But are they? Here is what Prof. LeRoy writes:

My study presents a picture of worker vulnerability. It also sheds light on employers who neglect worker safety. Recall that convoy drivers thought about striking after their co-worker was killed the day before in a similar assignment. Two women were sexually assaulted at work-- and then were locked up, interrogated, and harassed by their employer. These are settings where union voice is relevant. Unions already represent employees who work for defense contractors. Is Halliburton so different from Boeing?

Prof. LeRoy's bottom line is this:

Overall, the integrated work performed by these civilians and soldiers exemplifies the aphorism "out of sight, out of mind." My research suggests that these employees and soldiers deserve better treatment. The fact that they are fighting a war in a distant corner of the world is no reason to shortchange them. When private companies seek to profit by directing this employment and service, the veil of government immunity should be removed-- or at least curtailed. The present system imposes disproportionate costs on severely injured workers and soldiers, and their survivors. The lack of accountability for negligence, recklessness, intentional injury, and severe discrimination is at odds with military principles of discipline and order. In sum, the deaths and injuries that are at the heart of this study expose the shortcomings of the private military force strategy. As such, they also offer valuable lessons for improving this integrated war labor model.