AEU Longshore Blog ISSUE: Review of Status, Part One: Truck Drivers, Nurses, Railroad Workers, Security Guards, and Safety Managers

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.

Shipyard Nurses

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.

 

Truck Drivers

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.

 

Divers

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.”

 

Railroad Workers

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.

 

Safety Directors and Claims Professionals

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.

 

Security Guards

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.

 

 

 

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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: 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.

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.