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Pugh v. Newport News Shipbuilding & Dry Dock Co., (BRB No. 97-0693, 1/28/98, Unpublished) involved a claimant who worked in an office located on the waterfront on the shipyard property.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.

AEU Longshore Blog ISSUE: Clerical Exclusion – Part One

Clerical workers are excluded from Longshore Act coverage.

Section 2(3)(A) (33 U.S.C. section 902(3)(A)) of the Longshore Act states:

“The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include –

(A) Individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;”

This exclusion was one of several added by the 1984 Amendments to the Longshore Act.

The Act does not define “clerical” due to its nature as a commonplace word.  When a word is not defined in a statute it is presumed to have its popular and plain everyday meaning.

One definition of a person who performs “clerical” work is “a person employed, as in an office, to keep records, file, type, or perform other general office tasks; a person who keeps records and performs routine business.”

The word itself is plain and the statutory language is clear.  The problem is that jobs in the real world frequently cannot be classified so plainly or clearly.

Many employees performing clerical functions have mixed duties, performed in various places, handling a variety of materials, including parts, inventory, and cargo, and they may have personnel and staffing duties.  All of these considerations come into play in interpreting the applicability of the clerical exclusion.

One thing is clear: the words “exclusively” and “office” both modify “clerical” and the other three occupations listed in section 2(3)(A).  An employee must be engaged exclusively in clerical work in an office in order to be excluded from Longshore coverage under section 2(3)(A).

Here are some examples of how the clerical exclusion has been applied in Longshore Act jurisprudence.  Some of these cases deal with job duties that require trips out of the office.  Some deal with the meaning of “clerical” by looking at the type of materials handled by the employee and the nature of the duties. Some consider whether the worker’s duties are “exclusively” “clerical”.   All of them try to figure out what is meant by “clerical”, “exclusively” and “office”.

NOTE:  The way the exclusion works is that even if an employee meets “status” (by having job duties that meet the section 2(3) status requirement that their jobs be integral or essential to the employer’s maritime activities of cargo handling, ship building, ship repair, or ship breaking) and “situs” (by being injured in an area that meets the requirements of section 3(a)) for coverage under the Longshore Act, he or she is nonetheless excluded if the conditions of the exclusion apply.

Jannuzzelli v. Maersk Container Service Co., 25 BRBS 66 (1986) involved a clerk whose duties included going down to the dock regularly to check in employees for payroll purposes and to ensure that work crews were fully manned.  This work was considered integral to the loading/unloading process, so the issue was whether the claimant was excluded from Longshore Act coverage by the clerical exclusion of section 2(3)(A).  The U.S. Department of Labor’s Benefits Review Board (BRB) found that the claimant’s trips out of the office to the dock were a regular part of his duties, not “momentary or episodic”.  Since he was NOT engaged “exclusively” in “office” work he was NOT excluded from coverage as a clerical worker.

Stalinski v. Electric Boat Corp., 38 BRBS 85 (2005) involved a clerk who oversaw computer documentation and recording of pipe hangers and joints.  She occasionally left the office to go on board vessels, but in this case the BRB found that her trips outside of the office were merely “incidental to her clerical work” and “too sporadic” to warrant coverage under the Longshore Act.  She was excluded as a clerical worker.

Parrott v. Seattle Joint Port Labor Relations Committee of the Pacific Maritime Association, 22 BRBS 434 (1989) involved a claimant whose duties required that he ensure that work crews were fully manned to load and unload ships throughout the night.  His duties also required him to go to jobsites to deliver dispatch slips to foremen.  His duties were considered integral to the loading/unloading process, and his duties did not meet the requirements for the clerical exclusion.  In this case, his trips out of the office meant that he was not employed exclusively in an office.  He was NOT excluded from coverage.

Ladd v. Tampa Shipyards, Inc., 32 BRBS 228 (1998) involved a production clerk who worked primarily in an office but occasionally left the office to deliver paperwork.  The BRB affirmed the Administrative Law Judge’s (ALJ) finding that the claimant was excluded from Longshore Act coverage by the clerical exclusion.  The claimant’s trips outside the office were considered to be merely an extension of his office work.  Unlike the claimants in Jannuzzelli and Parrott, who had additional duties ensuring proper manpower, this claimant only handled paperwork.

Part Two of this blog post will review some additional cases where the clerical exclusion does or 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.