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.

ISSUE: Status: Mail Services Clerk and Truck Drivers Continued

This is a continuation of a status discussion. Last time we considered why a “mail clerk” at a shipyard met Longshore Act status.Jack_crop 72dpi

This time, we’ll discuss the maritime status of a truck driver.

This truck driver works for a food distributor. The food distributor’s customers provide catering services to offshore boats and drilling rigs. So, the truck driver’s employer is in the business of supplying, transporting and vending food supplies. It makes deliveries to docks for offshore delivery by other companies. The driver transports the supplies from the employer’s inland warehouse to staging areas at the docks.

At the docks, the claimant truck driver typically helps the dock employees unload the truck by pushing pallets to the back of the truck where they can be manually unloaded by dock workers, and if the dock workers use a forklift or crane, the driver attaches straps from the pallets to the crane or forklift. On rare occasions he uses a forklift himself, and also on rare occasions he goes on board vessels or speaks directly to crew.

Does this truck driver meet “status” for coverage under the Longshore Act?

Last time, in the case of the mail clerk, we looked at the status question first and then, since the mail clerk met status, we considered whether the section 2(3)(A) exclusion applied.

This time we’ll reverse the order, looking at the potentially applicable exclusion first.

Section 2(3)(D) is the applicable provision:

“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 including a ship repairman, shipbuilder, and ship-breaker, 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 an employer described in paragraph (4) (maritime employer), and (iii) are not engaged in work normally performed by employees of that employer under this Act;”

So the first question is whether or not our truck driver is excluded from Longshore Act coverage by this “vendor” exclusion.

The driver meets the first two necessary elements for the application of the exclusion. One, the employer is a vendor, and two, the claimant truck driver was temporarily doing business at the facility of a maritime employer. But what about the third element? He cannot engage in work “normally performed by employees of the employer” (i.e. the employer on whose premises he is temporarily on)? All three elements must apply for the exclusion to be effective.

In this case, the vendor exclusion does not apply. The third element is not met. The truck driver helped the dock employees unload the trucks. That was the dock employees’ job. Thus, the truck driver was engaged in work normally performed by the dock crew, so the driver is not excluded by this provision.

Since the exclusion does not apply, we can consider whether the driver meets maritime status. Was his work covered maritime employment because of the fact that a regular part of his job was pushing pallets to the back of the truck or hooking straps from the pallets to cranes or forklifts? In other words, work that if done by dockworkers might well be considered the first step in the loading process?

In the actual case, the Administrative Law Judge found that the claimant met status because these infrequent but regular duties were an integral part of the vessel loading process. He did regularly get out of the truck and assist in what was arguably part of the loading operation. So we know that he was not excluded by the vendor exclusion, and a small, but regular part of his job was to engage in what appears to have been maritime employment.

The Benefits Review Board reversed the ALJ’s decision. The Board found that the truck driver does not meet status.

Rather than characterizing the driver’s activity as part of the first step or as an intermediate step in the loading process, the Board found that his duties constituted the last step in land transportation. His job was to pick up and deliver food supplies from an inland warehouse to a staging area at the docks. Moving the pallets or fastening crane straps was the last step in the process of land transportation. The food supplies at this point had not yet crossed the invisible line and entered the process of marine cargo handling. Neither his duties, nor the groceries, had crossed the line between delivery by land transportation on one side and marine cargo handling on the other. On his side of the line, it was non-maritime land transportation. On the other side of the line, the supplies entered maritime commerce and the dock workers were engaged in maritime employment.

Although as noted there was testimony to the effect that on rare occasions the driver operated a forklift, or went on board a vessel, the Board concluded that these activities were “incidental to his primary non-maritime responsibility of trucking groceries to the site.”

So, all things considered, this truck driver is not covered by the Longshore Act. It makes sense. It was never the intent of the Longshore Act to cover this type of work or worker.

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 and Financial Management, and the 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.