ISSUE: Status – Security Guards

Jack_crop 300dpiIn the past I’ve discussed the possible maritime “status” of various occupations, such as truck driver, nurse, diver, railroad worker, foreign worker, corporate officer, loss control specialist, claims specialist, and independent contractor.  Now let’s discuss the “status” of security guards.

The job title “security guard” is all but irrelevant to the consideration of whether the employee meets status under the Longshore Act.  The issue of status requires an analysis of the entirety of the employee’s overall job duties.  Plus, for security guards, we have additional considerations.  First, we must consider the possible application of the exclusion in Section 2(3)(A), then if the exclusion does not apply we look at the full range of the employee’s regular duties looking for any component that might constitute maritime employment, and finally we have to consider the possible application of “Perini” coverage, i.e., coverage by virtue of working over the navigable waters.

So we have a security guard, a generic job title that typically covers a wide range of duties.  Assuming that he meets situs, is our security guard covered by the Longshore Act as a maritime employee?

First, let’s look at Section 2(3)(A) (33 U.S. 902(3)(A)).

“Section 902.  Definitions –

(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 –

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

Thus, the Longshore Act excludes persons employed to perform “security” work, and the exclusion contains the modifiers “exclusively” and “office”.

In the opinion of the U.S. Department of Labor’s (DOL) Benefits Review Board (BRB), the terms “exclusively” and “office” modify each of the four occupations of clerical, secretarial, security, and data processing.  This interpretation obviously weakens the exclusion’s application to security guards.  If the “security guard” must do exclusively security work in an office, you are not excluding very many security guards.

If your employee does not do his (exclusively security) work in an office, you are probably well advised to proceed as if the section 2(3)(A) exclusion does not apply.  You must consider the Longshore Act status of the worker along the lines of a complete analysis of his job duties.

So, we’ll repeat our usual General Principles of Status:

A worker satisfies the status requirement of section 2(3) if he is an employee engaged in work which is integral to the loading, unloading, constructing, or repairing of vessels.  To satisfy this requirement he need only spend some of his time in indisputably covered maritime operations – there is no minimum amount of time required. 

There is no moment of injury test for status; coverage is determined by the nature of the employee’s overall duties.

Status is not limited to those employees who directly load/unload cargo or build/repair vessels.  Workers who build, repair, or maintain the buildings, facilities, or equipment involved in these operations can also be covered.

Status does not distinguish between management and non-management personnel, and citizenship or nationality doesn’t matter.

The test for coverage is that a worker’s duties must be integral or essential to maritime operations.  This often involves the question of whether the non-performance of the worker’s duties would impede or interrupt the cargo handling or shipbuilding/repair operations, and/or whether the worker is in a position to cause the operation to come to a halt.

Security guards typically have a wide range of duties, and we have to consider each of these duties to determine if any of them are essential to maritime operations.

The most obvious initial question is whether maintaining cargo or vessel security alone is sufficiently integral to the maritime operation to confer status.  Look at all of the duties.  The more closely involved with actually protecting cargo or providing security on board vessels then the more likely it will be that the worker meets status.  In a Second Circuit case, a “pier guard” was covered, whose duties were described as insuring the protection of cargo against theft, pilferage, vandalism, and fire.  The Court noted that the “pervasive surveillance conducted by claimants on the pier and occasionally on board ship is essential to the longshoring operation” (Arbeeny v. McRoberts Protective Agency, 642 F.2d 672 (1981)).

So far, it looks good for employees who directly protect the security of cargo or vessels.  Look for any other duties that might strengthen the case for coverage.  Do they have medical or safety roles, or are they involved in the actual movement of cargo?  Do they have fire watch or maintenance duties on vessels?  Anything along these lines would further strengthen the case for coverage.

And, of course, if they are injured on board a vessel over navigable waters then they would be covered by virtue of Perini.

So, here’s my conclusion.

The section 2(3)(A) exclusion for exclusively office security guards is narrow.  It just doesn’t apply that often.

Look at a full occupational status analysis when you are considering coverage for security guards.  Are any of the worker’s duties integral or essential to maritime operations?  Security guards get the same status analysis as other employees working on a maritime situs but who are not directly handling cargo or building/repairing vessels.

Finally, if they are working on vessels then they are very likely covered by the Longshore Act.

 

One thought on “ISSUE: Status – Security Guards

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

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