Coverage questions about maritime “status” under the Longshore Act arise regularly, and the AEU Longshore Blog has addressed different occupations in various posts. Most recently we have discussed the “clerical exclusion” and the maritime status of salesmen and estimators.
Following is a compilation of other occupation-specific status discussions from past blogs. For more information, please refer to the original posts linked below.
First, a review of “status”: A worker satisfies the status requirement of Section 2(3) (33 U.S.C. 902(3)) if he is an employee engaged in work which is integral or essential to the loading, unloading, construction, repair, or dismantling of vessels. To satisfy this requirement the employee need only spend some of his time in covered operations. There is no moment of injury test; status is determined by the overall nature of the employee’s duties.
Status is not limited to those employees who directly load/unload cargo, or build or repair vessels. Workers who build, repair or maintain the buildings, facilities, and equipment involved in these operations are also covered.
For a review of status of shipyard nurses, the case of Lucille Galinas v. Electric Boat Corp is a good example. The claimant’s duties consisted of treating injured employees at the employer’s shipyard medical clinic, responding to ambulance calls in the shipyard, performing physical examinations, audiograms, and EKGs, stocking RADCON (radiological controls) supplies, and participating in RADCON training drills. The issue was whether this claimant’s duties met status for Longshore Act coverage as integral or essential to the employer’s shipbuilding operations. The U.S. Department of Labor’s Benefits Review Board (BRB) found that she did not meet the status test for coverage.
While the nurse’s duties were certainly important and useful to the employer, the non-performance of those duties did not have the potential to directly interrupt or impede the ongoing maritime operations, so she was not a maritime employee covered under the Longshore Act.
Typically there are several steps involved in the process of loading/unloading cargo. Containers or cargo in other forms come off ships, and are placed at dockside. The cargo may then be moved by the same or different personnel into a warehouse or storage area. It may then be emptied by the same or other workers, and again moved around the warehouse or storage area depending on the conditions of its storage and the timing of its delivery to the consignee. Finally, it is moved to a railhead or trucking area for overland transportation and delivery.
The Longshore Act covers all of the employees involved in the series of intermediate activities up to the point at which the cargo is loaded for overland delivery (or vice versa in the other direction). Truck drivers who move cargo around terminals and ports, or from one terminal or port to another, are covered by the Longshore Act.
The truck driver whose only duty is to drive the truck transporting cargo from the terminal directly to inland consignees is most likely not covered, as the loading/unloading process has stopped, and he or she is involved only in land transportation.
Coverage for divers is problematic. They may be covered by the Longshore Act, by state act workers’ compensation, or they may qualify for the seamen’s remedies as members of the crew of a vessel. Crewmember status was tested under the U.S. Supreme Court decision in Chandris v. Latsis, and described the “Uncertainty Zone” between the mutually exclusive Longshore Act and the Jones Act/General Maritime Law remedies.
Divers often have short-term assignments, mixed duties which can include loading/unloading, and vessel maintenance and repair, and work in a variety of locations ranging from docks and piers to the outer continental shelf to the high seas.
As previously reviewed, there are several examples of coverage situations for divers among the different remedies. In the case of Chandris, it did not end on an optimistic note. The conclusion was, “Due to the uncertainty inherent in coverage issues involving divers, the bad news is that maritime employers may find themselves fully insuring workers separately for mutually exclusive remedies.”
The same considerations of “status” apply to railroad workers as to any other employees, i.e., a worker whose duties are integral or essential to maritime activity has status for Longshore Act coverage.
In the U.S. Supreme Court case of Chesapeake & Ohio Railway v. Schwalb it was held that railroad workers who facilitate the loading or unloading of cargo – in this case, coal – onto vessels are covered by the Longshore Act, which is their exclusive remedy against their employer for workplace injuries. This includes workers who maintain, repair, and generally clean up around the equipment used in the loading/unloading process.
Because the Longshore Act covers these workers, they do not have the railroad employee’s negligence tort remedy under the Federal Employer’s Liability Act (FELA).
In these railroad cases, it is necessary to identify the point at which land commerce (traditional railroad activity) ends and cargo handling begins.
Does the Longshore Act cover shipyard and terminal safety and claims personnel? Do they meet the integral or essential test for status?
Duties include accident investigation, inspection of equipment and procedures, regulatory compliance, employee training, maintenance of logs and schedules, possibly emergency medical duties, and handling medical, legal and administrative aspects of injury claims.
Safety professionals could make a strong case for Longshore Act status, but that the claims staff would have a more difficult time establishing maritime status, since they typically first become involved only in the aftermath of operations that have resulted in an injury. They are not in a position to interrupt or halt maritime operations. Their jobs are important, but meeting the “essential” test for maritime status is unlikely.
Section 2(3)(A) of the Longshore Act excludes from coverage “individuals employed exclusively to perform office … security … work.” In order to be excluded from Longshore Act coverage the “security guard” must do “security” work “exclusively” in an “office”. This is a narrow exclusion.
An occupational analysis of typical security guard duties indicates that if they are on a covered situs then they may have a good argument for status.
The federal Second Circuit Court of Appeals has stated, “… pervasive surveillance conducted by (security guards) on the pier and occasionally on board ship is essential to the longshoring operation” (Arbeeny v. McRoberts Protective Agency, 642 F.2nd 672 (1981)). Based on this, many security guards have a good argument for status under the integral or essential test.
Duties along the lines of safety roles, fire watch, maintenance, cargo processing, or any work actually over the water strengthen the status case for security guards.
As with all of these status discussions, pay attention to the full range of actual job duties and not to the job title. Part Two of this post will include construction workers, bridge workers, and some unusual status situations.
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.