AEU Longshore Blog ISSUE: Maritime “status” for “salespeople” and “estimators”

The question arose recently as to whether salespeople and estimators are covered under the Longshore Act.  This is a very imprecise and incomplete question, but it can be answered easily.  The answer is, “maybe.”

Ordinarily a question like this can only be addressed by asking an interminable number of context and background questions.  It may be useful to go through a “status” analysis of these two very broad occupational classifications, since it will require a consideration of a number of concepts central to the coverage issue of status.

But first we have to define what we mean by “salesperson” and “estimator”.

Salesperson means a person who sells goods and/or services.  It’s that simple.

Estimator, however, is more difficult.  Although it’s a somewhat vague noun, we can take it to mean one who evaluates and renders opinions as to value, time, and approximate charges for work to be done, and who performs appraisals, etc.  We will assume that our “estimator” is one who comes on to a maritime site to perform an estimate for someone seeking to perform work or assess condition.

For this discussion, we’ll assume that “situs” is met for Longshore Act coverage.  Now we can work through an analysis of whether salespeople and estimators meet “status”.

First, a very brief summary of broad general principles with regard to Longshore Act status:

  1. Status is determined by the overall nature of the worker’s duties, and the role of those duties in accomplishing, contributing to, facilitating, interrupting, impeding, and otherwise constituting a necessary part of cargo handling or shipbuilding/ship repair/shipbreaking.
  2. The test that is used is whether those job duties are essential or integral to traditional maritime activity such as cargo handling, shipbuilding, or ship repair.
  3. There is no moment of injury test for status. If any part of an employee’s regular duties is maritime in nature then he or she meets status for his entire employment, even if performing non-maritime work at the moment of injury.
  4. If an injury occurs while the employee is working over the navigable waters of the U.S., then he or she is covered by the Act unless an exclusion applies. The employee does not have to meet status for injuries over the water.

In order to determine whether or not salespeople and estimators may meet status, we’re going to have to separately consider several statutory provisions and coverage concepts.

 

Vendor Exclusion

First, let’s take the case of an injury to a salesperson or estimator that occurs while he or she is selling or estimating over the navigable waters of the United States.  We know from the U.S. Supreme Court’s decision in Director, OWCP v. Perini North River Associates (Churchill), 459 U.S. 297 (1983) (so-called Perini coverage) that situs confers status, and an injury over the water is covered under the Act.  This was the basis of coverage for an electrical repair estimator on board a vessel in the case of Scott v. Tug Mate, Inc., 22 BRBS 164 (1989).

So injury over the water is covered, unless a statutory exclusion applies – and there is one that might apply.

Section 2(3)(D) of the Longshore Act states:

“Sec. 2(3) The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker …, but such term does not include –

(D) individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the premises of a (maritime employer), and (iii) are not engaged in work normally performed by employees of that employer under this Act.”

This exclusion only covers 1) employees of vendors, suppliers, and transporters 2) who come on to a maritime situs temporarily and 3) are not engaged in work normally performed by employees of that employer under the Act.

Note:  the condition for the application of the exclusion is that the worker is covered by the state’s workers’ compensation law.

Examples of workers excluded under section 2(3)(D) include employees selling a product, such as the salesperson of cellular telephone air time (Daul v. Petroleum Communications, Inc., 196 F.3d 611 (5th Cir. 1999)) and the truck driver employed by a transporter whose sole responsibility was to pick up, transport, and deliver containers of sealed cargo from a storage area outside of the maritime facility who never left the truck.

So, a salesperson or estimator who is injured while working over the navigable waters of the U.S. is covered under the Longshore Act, unless this “vendor exclusion” applies. Although this exclusion is narrower than generally believed, salespeople are prime candidates for exclusion, depending on the circumstances and job duties.  Estimators, though, are less likely to be excluded by section 2(3)(D).  First, they have to be employed by a vendor, supplier, or transporter.  This rules out application of the exclusion for most estimators, who are more likely to be employed by a ship repairer, construction firm, insurance company, surveyor, etc.

For any injury that occurs over the water and coverage is uncertain, it is best first to consider whether Perini coverage applies and then consider whether any of the statutory exclusions in section 2(3) may apply.

To summarize so far, salespeople and estimators are covered by the Longshore Act if they are injured while working over the navigable waters, unless an exclusion such as the vendor provision applies to them.

 

What if the injury occurs on land and no exclusion applies?

We’re still assuming that they are on a covered situs, either an enumerated site or another adjoining area customarily used for maritime employment under Section 3(a).  In this case, we fall back on the general test for status, i.e., the employee has at least some regular job duties that are integral or essential to maritime activity.

This is a familiar issue, and it involves the question of whether the non-performance of the job duties in question has the potential to impede or interrupt the ongoing maritime activity at the site.  Under this test, I think that finding Longshore Act status for salespeople or estimators, as we have defined them, would be a stretch.  Their jobs are important, but they would usually fall short of the integral or essential test.

There is a broad range of jobs that have been found to be helpful and convenient to the maritime employer, but not essential.  These include shipyard nurses, claims adjustors, courtesy van drivers, terminal mess hall cooks, and office custodians. In most cases, salespeople and estimators can be added to this list.

Of course, there are other circumstances that can affect the coverage determination.

What if the salesperson delivers products on board vessels and actually helps to store/install the products?  The fact that he or she stores or installs the products most likely rules out the vendor exclusion (since the salesperson is doing work normally done by employees of the maritime employer), and if Perini doesn’t apply (injury not actually over the water) may he or she meet status?

The case of Felt v. San Pedro Tomco, 25 BRBS 362 (1992) involved a salesperson who delivered cleaning supplies and equipment to vessels several times daily.  Status was denied in this case since the time spent leading and discussing deliveries was minimal and episodic compared to his overall duties.  But this case could go the other way with a small change in circumstances.

Summary

Here is the checklist for coverage for a salesperson or estimator:

  1. Does Perini apply, i.e., did the injury occur over the water?
  2. If so, does an exclusion, such as the vendor exclusion in section 2(3)(D), apply?
  3. If neither 1 nor 2 apply, then does the worker meet the integral or essential test for status?

 

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

AEU Longshore Blog ISSUE: Clerical Exclusion – Part II

This is a continuation of the discussion of the “clerical exclusion” contained in section 2(3)(A) of the Longshore Act (click here for Part One).

Below are some cases that illustrate how the exclusion of clerical workers has been applied in Longshore Act jurisprudence.

Pugh v. Newport News Shipbuilding & Dry Dock Co., (BRB No. 97-0693, 1/28/98, Unpublished) involved a claimant who worked in an office located on the waterfront on the shipyard property.  She was occasionally required to leave the office to retrieve documents from other buildings.  The Benefits Review Board (BRB) found that this person was excluded from Longshore Act coverage, since the occasional trips out of the office were merely extensions of her office clerical, paperwork handling duties.

Lennon v. Waterfront Transport, 20 F.3d 658 (5th Cir. 1994) involved a “dispatcher” who in the course of regular clerical duties also sorted and packed cargo headed for loading onto vessels.  Because the employee did not only handle paperwork, the duties were not “exclusively” clerical, so the employee was NOT excluded from Longshore Act coverage.

Bergquist v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 131 (1989) involved a key machine operator who processed invoices and inspection information using a computer terminal to generate stickers and tags to be placed on equipment.  The employee did not personally affix the stickers or tags or otherwise handle any equipment.  This employee was excluded under the clerical exclusion.

Stone v. Ingalls Shipbuilding, Inc., 30 BRBS 209 (1996) involved a “joiner-helper” who worked in a trailer-office ordering material for shipbuilding, tracking material, filing, compiling workstation packages, researching budgets and acting as a liaison between the foremen and the planners.  These duties were considered to be exclusively clerical and the trailer-office qualified as a business office.  The employee was excluded from Longshore Act coverage.

Boone v. Newport News Shipbuilding & Dry Dock Co., 37 BRBS 1 (2003) involved a claimant who worked in a warehouse.  The BRB affirmed the Administrative Law Judge’s (ALJ) finding that the warehouse was a large open area where supplies were received, stored and dispensed.  It was not an office, which is characterized by the presence of desks, chairs, computer terminals, copy machines, etc.  Since the claimant did not work in an “office” the clerical exclusion did NOT apply.

Anne M. Smith v. Huntington Ingalls Industries, Inc., (BRB No. 13-0500, March 19, 2014, Unpublished), involved a mail clerk.  Situs was met and the claimant also met status for Longshore Act coverage, so the issue was whether the clerical exclusion applied.  In addition to processing mail, the claimant regularly handled items used in the shipbuilding operations including tools, metal pieces, plates, shafts, and pipes.  This material handling was not clerical work, and the claimant was NOT excluded from Longshore Act coverage.

Wheeler v. Newport News Shipbuilding & Dry Dock Co., (39 BRBS 49 (2005)), involved an employee who was a senior engineering analyst (note: job titles do not determine whether the exclusion applies; it is the nature of the job duties) who occasionally met with the employer’s engineers or inspected parts away from his office, and his duties included reviewing plan specifications and ensuring that the parts were correct.  The BRB affirmed the ALJ’s determination that this employee’s duties required the exercise of judgment and expertise beyond what would be considered to be clerical work.  He was NOT excluded.

Riggio v. Maher Terminals, Inc., (35 BRBS 104 (2001), affirmed sub nom.  Maher Terminals, Inc. v. Director, OWCP, 330 F.3d 162 (3d Cir. 2003)) involved an office clerk who was injured when he fell off his chair in his office.  This worker was assigned some of his time as a checker (an occupation which meets Longshore Act status) and thus was not employed “exclusively” as a clerical worker.  There is no moment of injury test, so once he met status because of his work as a checker, he was covered throughout his employment.

 

We can draw some principles from these cases:

  • Occasional trips out of the office for the purpose of handling paperwork can still meet the “exclusively” and “office” requirements for the clerical exclusion.
  • If the employee is handling parts, materials, or cargo, as opposed to paperwork, he or she is probably not engaged exclusively in clerical work.
  • The work must be performed in a business office.
  • If the worker is regularly assigned other duties, such as checker, for any part of his work, he or she is not employed “exclusively” in clerical work.

And, finally, we can draw some broad conclusions.  To qualify for the clerical exclusion from Longshore Act coverage, a worker must work in a business office (as opposed to, for example, a warehouse), must make only occasional trips out of the office (and only for work incidental to the clerical duties), and must handle paperwork (as opposed to, for example, parts, materials, etc.)  The work must not entail the exercise of judgment or expertise outside of the clerical sphere, and finally, if any of the worker’s regularly assigned duties are maritime and not clerical, then that worker has full-time Longshore Act status and the exclusion does not apply.

 

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.