A Reporter Asks: Can Federal Workers Win a Claim of Involuntary Servitude?

A reporter asked me this question today: “I’m … working on a story on a lawsuit filed by five federal workers alleging that their work without pay is a violation of the 13th Amendment. I came across your article in 2007 for the Berkeley Journal of Employment and Labor Law and thought that you may be able to offer important perspective as an expert source in the article on how the 13th amendment may or may not apply here.”

So, what’s the answer?

The bar for this type of lawsuit is extremely high. Generally, physical or legal coercion is necessary as a means that compels someone to work.

Still, a few successful cases are litigated every year, in civil and criminal cases. A common situation is when migrants who work in the U.S. are held against their will in a compound, typically surrounded by a locked fence. Another scenario is where a cult holds people in similar circumstances—again, with physical restraint— and requires work to be done.

But that’s a far cry from federal workers.

That said, President Trump has stated that he has “absolute authority” to declare a national emergency. His language connotes that he has no limits.

So, here are two plausible situations where a test case for involuntary servitude might arise.

One involves physical restraint. Suppose an air traffic controller or a Homeland Security employee is under an executive order that includes mandatory overtime to work for others who do not show for work. Further suppose that they are blocked from leaving during the overtime shift—let’s say the gate at work is locked for 24 hours. That seems plausible at the extremes of what is developing and would set up a decent test case of involuntary servitude.

The other involves legal coercion. Suppose essential government workers are threatened with criminal enforcement of a national security law—for example, aiding and abetting smuggling of drugs by not showing up for border patrol work. Nothing like this has ever happened—but again, what does the president see as his limits? If he has “absolute authority,” I can’t say that his unconstitutional view precludes the possibility of a Trump executive order that mimics martial law. That, too, would set up a good test case of involuntary servitude.