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Pugh v. Newport News Shipbuilding & Dry Dock Co., (BRB No. 97-0693, 1/28/98, Unpublished) involved a claimant who worked in an office located on the waterfront on the shipyard property.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