Accountability for Outsourced Torts: Expanding Brands' Duty of Care for Workplace Harms Committed Abroad

Abstract

Existing U.S. law conceptualizes employment as a stable, bilateral contract between a unitary employer and its employees. It holds employers to particular duties vis-a-vis their employees and links liability for workplace conditions to the employment relationship. Under this system, workers harmed by unsafe or unfair labor practices at the bottom of the global supply chain—who seldom have direct employment relationships with the multinational firms, or “brands,” that profit most from their labor—face nearly insurmountable barriers to achieving change or obtaining redress at the top. This Note proposes an expanded duty-based liability regime in the United States that would hold brands to a duty of reasonable care to prevent violations of core labor standards throughout their global supply chains. Under such a regime, brands that no longer employ the workers that manufacture the goods they sell, but instead contract out manufacturing to suppliers, often overseas, would be responsible to their suppliers’ employees for substandard labor conditions. Although implementation of this regime would require a significant shift in the way that courts and law-makers think about the employer-employee relationship, this change is warranted by the considerable deterrence and fairness advantages that such a regime would offer in light of the realities of contemporary global production. It is also consistent with evolving conceptions of tort law and the growing global consensus that multinational brands ought to be held accountable for the consequences of outsourcing production abroad.