Before it adjourns
for the year, Congress should address liability issues that have
been dogging military contractors that have employees working in
foreign theaters. Contractors perform needed services abroad, but
if they continue to face unmanageable liability risks, many could
leave the United States' employ, diminishing the nation's base of
responsible and qualified firms that can support military,
humanitarian, peacekeeping, and reconstruction operations.
their workers to some of the most dangerous regions of the world,
and these workers are well compensated for the risks that they
assume. Unfortunately, injuries do happen. The problem is that
contractors are finding themselves subject to massive potential
liability when employees pursue tort claims in state courts. In
addition to driving up costs, these claims could drive some
contractors out of the United States entirely.
dealt with this problem, albeit imperfectly. The Defense Base Act
(DBA) was intended to make workers' compensation the exclusive
remedy for employees of military contractors who are working abroad
on federal contracts or land. If the DBA had succeeded in this,
there wouldn't be a problem today. But the Act left open a couple
holes that Congress needs to go back and patch.
The DBA requires
contractors to obtain workers' compensation insurance for employees
working overseas and establishes that compensation as the sole
remedy for employees and their families. This insurance can be
secured through an outside company, or the contractor can
self-insure. Military contractors usually fall under the DBA
because they perform contracts under the direction of a federal
agency or officer or on military bases or other
The solution to
the current contractor-liability problem is simple: Congress should
give federal courts exclusive jurisdiction over the claims that are
now being litigated in state courts. In addition, federal courts
should have exclusive jurisdiction over third-party claims against
military contractors that arise on government contracts because
these suits, too, involve primarily federal issues. By amending
Title 10 to clarify the intent of the DBA, Congress would ensure
that the U.S. government has a competent and responsible pool of
military contractors from which to choose.
limited remedies for military contractors' employees to workers'
compensation when those employees are working abroad under the DBA.
Altering Title 10 to give federal courts exclusive jurisdiction
over such claims clarifies congressional intent in the DBA to
prevent state tort claims against military contractors.
Furthermore, exclusive federal jurisdiction is also appropriate for
third-party claims against military contractors arising from their
contracts because there are unique federal interests implicated.
Congress already got the big idea right; now it needs to go back
and fix a few of the small details.
Kochems is a Policy Analyst for National Security in the
Kathryn and Shelby Cullom Davis Institute for International Studies
at The Heritage Foundation.