ISSUE: Discrimination

Jack_crop 72dpiEmployers should be aware that there is a remedy in the Longshore Act for workers who have been fired or “in any other manner” discriminated against for claiming or attempting to claim compensation under the Act or for testifying in a proceeding under the Act.

Formerly section 49 of the Longshore Act, current section 948(a) (33 U.S.C. 948(a)) states, “It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer, or because he has testified or is about to testify in a proceeding under this chapter….  Any employer who violates this section shall be liable to a penalty of not less than $1,000 or more than $5,000, as may be determined by the deputy commissioner (district director)….  Any employee so discriminated against shall be restored to his employment and shall be compensated by his employer for any loss of wages arising out of such discrimination.”

The remedy for the worker is reinstatement to the job (if he is capable of performing it) and lost wages.  In addition, the employer is liable for a penalty payable to the Special Fund.  Note:  Effective November 17, 1997, the penalty range was increased to not less than $1,100 or more than $5,500 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Debt Collection Improvement Act of 1996.

A complaint by an injured worker under section 948(a) begins in the U.S. Department of Labor’s district office, where the District Director will investigate the circumstances and issue a recommendation.  Any party who disagrees with this informal recommendation may have the matter referred to the Office of Administrative Law Judges (OALJ) for a formal hearing.

The injured worker bears the initial burden of proof.  In order to establish a prima facie case of discrimination, an injured worker must demonstrate that his employer committed a discriminatory act motivated at least in part by a discriminatory animus or intent.  For example, discharging an employee may violate section 948(a) even if it is only partly motivated by the fact that the worker has filed a claim for compensation.  The testimony of the parties is frequently decisive in these cases, and the Administrative Law Judge will assess credibility and may infer animus or intent to discriminate strictly from circumstantial evidence.

The ALJ may look at the timing of the injured worker’s termination, for example, and if it occurred coincidentally with the filing of a claim for compensation, the ALJ may consider that the termination was motivated at least in part by the claim.  The ALJ will also look at whether the injured worker was treated differently compared with other employees in similar circumstances.  The inquiry will be into whether the basis for the employer’s action is genuine or merely a pretext for discrimination.  The ALJ is seeking the actual reason for the employer’s action.

The employer must defend the discrimination claim by showing that its action was not motivated, in any part, by the worker’s exercise of his rights under the Act.  Note that the essence of discrimination is treating the worker in a disparate manner from other employees.  It is always very important to show that the employer has consistently applied its personnel policies and work rules equally to all workers in all circumstances.

Miscellaneous:

The refusal to hire a person who has been adjudicated to have filed a fraudulent claim for compensation is not a violation of section 948(a).

A section 948(a) discrimination claim may be settled under the provisions of section 8(i), but only as to past and existing claims.  Possible future discrimination claims can never be settled under section 8(i).

If a discrimination claim is settled under section 8(i), and if it includes a penalty payable to the Special Fund, the Department of Labor’s District Director must be a party to the settlement.

Although a successful claimant will not receive back pay and, for example, temporary total disability benefits for the same time period, an ALJ may order job reinstatement with the claimant’s ability to perform the job duties postponed until maximum medical improvement.

In section 948(a) discrimination cases, you frequently see a record of disputed oral communications, misunderstandings, bad timing, and inconsistencies on the employer’s part in enforcing its rules and policies.  Circumstances may suggest animus where none in fact exists.  The employer’s best policy is consistent application of written policies and rules.

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