Longshore Act Question Number 3

What Is the Difference Between State Act Comp and the Longshore and Harbor Workers’ Compensation Act?

One is state and the other is federal.

Wow! That one was easy. Next!…..What? Not buying it? OK, I’ll try again.

But first, the shortest history in the history of history.

– The Industrial Revolution in the United States during the nineteenth century led to the social consciousness of the Progressive Era,

– Which led to the passage of the first workers’ compensation law in New York State (or Wisconsin, take your pick) in 1910,

– Which led to conflict with the uniformity principles of the Admiralty and Commerce clauses of the U.S. Constitution,

– Which led to the U.S. Supreme Court’s decision in 1917 that the states could not extend their workers’ compensation laws to land based maritime workers while the workers were over the navigable waters of the United States,

– Which led to the enactment of the Longshoremen’s and Harbor Workers’ Compensation Act in 1927 extending federal workers’ compensation protection to shore based workers injured while temporarily on navigable waters,

– Which led to the 1972 amendments to the Longshore Act extending coverage landward to adjoining areas customarily used for maritime purposes,

– Which led to the 1980 U.S. Supreme Court decision that the Longshore Act did not “supplant” state laws, but rather “supplemented” state laws,

– Which led to today. We’re still trying to sort out issues of overlapping and concurrent state/federal jurisdiction in the hundreds of occupations carried on in and around navigable waters that could be either state or Longshore or both simultaneously depending on the state in which the injury occurred and the facts of the case.

So we have workers’ compensation laws in each of the 50 states and the various territories coexisting alongside the Longshore Act.

In an earlier posting (September 9, 2009) I offered my unofficial lists of states with concurrent (dual) jurisdiction and states that have “exclusive” jurisdiction. I’ll repeat the lists here.

Concurrent states – Alabama, Alaska, California, Georgia, Illinois, Indiana, Kentucky, Minnesota, New York, Missouri, Pennsylvania, Rhode Island, South Carolina, Virginia, Wisconsin, West Virginia.

Exclusive states – Florida, Hawaii, Louisiana, Maine, Maryland, Mississippi, New Jersey, Ohio, Oklahoma, Oregon, Texas, Washington.

These lists are subject to change at any time as state insurance laws change.

Note: “Concurrent” in this context simply means that in some states there are some injuries that are covered by both the state’s workers’ compensation law and by the Longshore Act. A state that is listed as “exclusive” on the other hand has amended its workers’ compensation law with language to the effect that if you are covered by a federal workers’ compensation law then you are not covered by that state’s law.

So, the Longshore Act is a workers’ compensation law for the protection of injured workers, just like the laws in the 50 states and the territories. These state laws usually cover different workers, but there is frequent overlap and uncertainty, especially in the “concurrent” states, where injured workers routinely file claims under both state act and Longshore Act and employers face redundant administrative, legal, expense, and sometimes benefit costs.

Here are some differences:

– The Longshore Act usually costs more to insure (see Question Number 7);

– The Longshore Act was enacted by the U.S. Congress as opposed to the state legislatures;

– The Longshore Act is administered by the U.S. Department of Labor and not by state agencies;

– The Longshore Act is generally more liberally administered and pays higher benefits than the state acts;

– The Longshore Act covers “maritime” employees (and there’s a library of case law trying to decide what that means) as opposed to “local” workers covered by state law; and,

– The most important difference for employers is that state workers’ compensation laws and the Longshore Act are separate exposures. And because of the overlapping jurisdictions and coverage uncertainties an employer must be careful and make sure that he has the correct coverage.

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