This is Part Two of a compilation of occupation-specific status discussions from past AEU Longshore blog postings.
A few years back, we covered the Longshore Act status of construction workers. These are workers who build, repair, renovate, or maintain buildings and equipment. They are welders, electricians, roofers, sheet metal workers, carpenters, plumbers, etc. They work on shipyard and terminal buildings at maritime locations as well as office and industrial buildings nowhere near any navigable water. The problem is determining when these workers may be covered by the Longshore Act.
This is a status discussion, so let’s assume that the workers meet situs for Longshore Act coverage.
Construction work can be maritime employment based on the location and timing of the work and the nature, purpose, and use of the structures being worked on.
First, the structure must have a maritime purpose. Construction work does not meet maritime status simply because it is done on a maritime situs. The building or structure has to have a maritime connection, integral or essential to the loading/unloading of cargo, shipbuilding, ship repair or ship breaking.
Second, there’s a timing element. The nature of the building, structure, equipment, etc. being built, maintained, renovated, or repaired has to be related to concurrent maritime activity. Future intended maritime use may not be enough to confer status.
Two case examples illustrate this point:
- A pipefitter building a power plant at the Norfolk Naval Shipyard failed to meet Longshore Act status. Although the plant would eventually provide steam and electricity to shipbuilding operations, at the time that the claimant was on the site it was new construction and the building had never performed a maritime function. When the job was finished the claimant would have been off the site and on to another construction project (Weyher/Livsey Constructors Inc. v. Prevetire, (27 F.3d 985 (4th 1994)).
- However, two maintenance workers at that same power plant at a later date did meet status. At the time of their injuries, the plant was operating and the steam and electricity were going to supply shipyard operations. The employees were maintaining an operating, essential maritime facility, (Kerby v. Southeastern Public Service Authority, (31 BRBS 6 (1997)).
When it comes to coverage issues with regard to construction workers, the best approach is to analyze the timing and nature of the project looking for an essential maritime connection.
Mail Clerks and Truck Drivers
In the past, we have also addressed in general terms the coverage issues related to the maritime status of mail clerks and truck drivers (see parts one and two of that discussion). This included consideration of the “vendor exclusion” of section 2(3)(D) as it may apply to truck drivers. This exclusion is narrower than generally believed, therefore it may be worth revisiting those discussions.
About a year ago, we reviewed a then-new truck driver case of Abdulaziz A. Ahmed v. Western Ports Transportation, Inc., (BRB No. 16-0067, 9/21/16). This decision contains a good discussion of the issues of situs as well as status.
In addressing the status issue, the BRB reviewed a number of its prior truck driver cases. It considered several situations where drivers, much like the driver in this case, transported cargo between port terminals and facilities located outside the port. These drivers were involved in the land-based stream of commerce rather than cargo handling. The key point is that the drivers were transporting sealed containers, loaded onto the trucks by others, to destinations outside the port area. Since the driver in this case was transporting containers between the port and an inland intermodal facility, he was involved in land transportation and did not meet status under the Longshore Act.
An example of a special status issue is the situation where status is actually irrelevant. On several occasions, notably on September 23, 2010 and January 27, 2015, the AEU Longshore Blog referenced Perini coverage. It’s a very simple principle. According to the U.S. Supreme Court, any work over the navigable waters of the United States is covered by the Longshore Act, unless an express statutory exclusion applies. Situs over the water confers status; the nature of the work doesn’t matter.
The Longshore Act status of foreign workers has also been discussed on several prior occasions, notably on February 14, 2012 and July 1, 2015. The coverage provisions of the Act, sections 2(3) (status) and 3(a) (situs), comprise the tests for coverage. With the exception of the section 3(b) exclusion of employees of a foreign government, there is no nationality or citizenship component to Longshore Act coverage.
For example, if a domestic U.S. company hires foreign workers to work in the U.S., either permanently or temporarily, these workers are covered if they meet Longshore Act status and situs. Likewise, if a foreign company sends employees to work in the U.S. these workers are also covered if they meet situs and status.
In the July 1, 2015 post, the point was made that the same considerations also apply to workers in the U.S. illegally. The definition and coverage provisions in the Longshore Act do not contain citizenship, nationality, or immigration status conditions.
Cases involving bridge workers involve issues of both situs and status, as we discussed back on July 13, 2010. Status is usually a secondary consideration in bridge cases. If you meet the situs element for coverage then you will often satisfy status by virtue of Perini (work over the water) coverage.
Work on a bridge does not usually meet situs since bridges are considered extensions of land and are not “enumerated sites” under section 3(a). Situs issues usually include instances where the worker is not working on the bridge itself but from a barge or work platform (watch out for MEL exposure here), or where the bridge is incomplete, or the bridge is floating, not permanently affixed to land, or any number of circumstances which affect the question of whether the bridge is permanently affixed to land.
But back to status. If the worker meets situs and Perini doesn’t apply because the injury does not occur over the water then you have to sort out status.
Is work on a bridge considered maritime employment? You need a strong maritime connection to have an argument for Longshore coverage. For example, what effect will the work have on water borne commerce? If you can make a strong argument that the purpose of the work is to aid, regulate, or otherwise influence maritime commerce, such as work on a drawbridge that will improve the flow of commerce, then you may have status. In some federal circuits if you are unloading construction materials at the job site this may give you status.
Conclusion: Work on completed bridges permanently affixed to land is not generally considered to meet situs or status under the Longshore Act, but all facts should be considered for any duties or circumstances that could implicate Longshore coverage. For example, is the worker loading and unloading construction materials from vessels, or is he working from a floating work platform or barge? Might he be considered a “harbor worker”, based on the effect of his work on water borne commerce? One must look closely at all circumstances before concluding that bridge work is not covered by the Longshore Act. We’ll cover the various nuances of bridge worker coverage in an upcoming post.
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.