Courts use various methodologies to simplify factual analysis, organize the evaluation of evidence, recognize the triggering in shifts in the burden of proof, facilitate matching the facts of a case to the law, and so forth. There are tests, rules of thumb, presumptions, Rules, etc.
For example, there is a 30% rule of thumb in Jones Act cases for evaluating the occupational status of an injured worker. If a worker spends less than 30% of his working time on board a vessel, then he probably isn’t a Jones Act seaman.
Question: Is there an analogous rule of thumb for evaluating the maritime status of workers in Longshore cases?
This question requires some background discussion before we get to the short answer (which is “Sort of”).
In a previous discussion I mentioned that the phrase “walking in and out of coverage” was sometimes misapplied to the concept of “status” under the Longshore Act. You can “walk” in and out of situs, but you don’t walk in and out of status (unless you change jobs or employers of course in which case it’s a one way trip).
The confusion caused by workers walking in and out of coverage was a particular problem under the pre-1972 Longshore Act, when the water’s edge marked the coverage boundary between the Longshore Act and state act workers’ compensation laws. Following the movement of coverage landward in the 1972 amendments, courts continued to be concerned with the problem of shifting coverage uncertainties under a law designed for nationwide uniformity for maritime workers.
On previous occasions, we’ve considered the section 2(3) concept of maritime “status” under the Longshore Act (33 U.S.C. 902(3)). We’ve listed Principles of Status, applied them specifically to several occupations, considered how the concept might differ among the various Federal Circuit Courts of Appeal, and analyzed what makes an occupation “integral” or “essential” to maritime operations in order for the worker to meet the “status” of a maritime employee.
We know that status is determined by the overall nature of the worker’s duties, and the role of those duties in accomplishing, contributing to, interrupting, impeding, and otherwise constituting a necessary part of cargo handling or shipbuilding/ship repair/shipbreaking.
But once you have identified some part of a worker’s duties that is integral or essential to maritime operations, more questions arise. What if only part of the worker’s duties are integral or essential to maritime operations, or what if he is injured while performing duties other than those that are integral or essential to maritime work?
Here’s our chance for a Longshore “status” Rule or test. We can call it the “No Minimum Rule” or the “No Moment of Injury Test”.
Once you’ve identified some regular component of the worker’s duties that is integral or essential to maritime operations, you’ve satisfied “status” and you’ve got yourself a full time maritime employee under the Longshore Act. There is no minimum percentage of work that must be maritime in nature, and it doesn’t matter if the injury occurs while the worker is performing non-maritime work.
This concept has been around a long time. Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249 (1977) is one of the early, major decisions interpreting the 1972 amendments to the Longshore Act. In Caputo the Supreme Court stated, “It seems clear, therefore, that when Congress wanted to cover ‘longshoremen’ it had in mind persons whose employment is such that they spend at least some of their time in indisputably longshoring operations and who, without the 1972 Amendments, would be covered for only part of their activity.” The key phrase here is, “at least some of their time in indisputably longshoring operations”.
Caputo is still good law. It was reiterated in another important Longshore “status” case. In Chesapeake & Ohio Railway Co. v. Schwalb, 493 U.S. 40 (1989), the Supreme Court stated, “We hold today that (the injured employees) are covered by the LHWCA since they were injured while performing tasks essential to the process of loading ships. In light of Northeast Marine Terminal Co. (Caputo), however, it is not essential to our holding that the employees were injured while actually engaged in these tasks. They are covered by the LHWCA even if, at the moment of injury, they had been performing other work that was not essential to the loading process.” The key phrase is, “They are covered … even if, at the moment of injury, they had been performing other work”.
At least “some time” in maritime employment confers status under the Longshore Act. How much is “some time”? Do we need a minimum percent of time spent in maritime duties? It turns out that there is no minimum percentage of a worker’s duties needed to qualify for Longshore Act status, with the one condition that the maritime work be a regular part of the worker’s duties. We’re talking about as little as 1 or 2 percent.
So there’s our rule, coming out of the concern with workers walking in and out of coverage during their workday. We can call it the “No Minimum Rule” or the “No Moment of Injury Test”.
The interpretation of what constitutes integral or essential components of maritime operations may ebb and flow. If the recent Fifth Circuit decision in Zepeda indicates a possibly developing trend, the interpretation may be narrowing and moving in the direction of requiring more immediacy or direct concurrent impact on ongoing maritime operations. Perhaps the trash collectors, air conditioning filter changers, janitors, roof repairers, gear locker clerks, etc. may be in the process of losing their Longshore Act status.
But however “integral or essential” are interpreted, once we have indisputably identified a regular, essential maritime component to a worker’s duties then our “No Minimum Rule” applies, and so does our “No Moment of Injury Test”.