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Pugh v. Newport News Shipbuilding & Dry Dock Co., (BRB No. 97-0693, 1/28/98, Unpublished) involved a claimant who worked in an office located on the waterfront on the shipyard property.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.

Longshore Act Question Number 12

Can You Exclude Corporate Officers Under the Longshore Act?

In answer to the previous question regarding joint and several liability we saw how much trouble the corporate officers of an uninsured employer can get into under the Longshore Act. So we might as well look at another question involving corporate officers.

Question: Can an employer exclude its corporate officers from its workers’ compensation insurance coverage under the Longshore Act?

Answer: No way.

The definition of “employee” under the Longshore Act is contained in section 902(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 master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.

The term “any person” includes all management and executive personnel.

Sections 902(3)(A) through 902(3)(H) contain coverage exclusions added by the 1984 amendments, but none mentions corporate officers.

The only other place in the Act where corporate officers are mentioned is section 941(f), where “officers” who willfully violate the section 941(a) safety rules and regulations can be fined.

So the answer here is the same as the answer to question number 11 concerning whether small employers can opt out of coverage. Don’t even think about it.

Coverage under the Longshore Act is without regard to the title of the employee, whether management or non-management, officer or non-officer. An employee who meets the situs and status requirements is covered.

How about this example. A corporation has one employee. He’s the president. He actually goes out everyday and does the company’s maritime business. He is injured on the job. Can he file a claim? As someone once said, “You betcha!”

Admittedly, it might get a little weird. If the employer doesn’t have Longshore Act insurance then the employee has the option to sue in tort. So he can sue himself. We can let the courts sort that out. All we have to remember is that corporate officers must be included in Longshore Act coverage.

Longshore Act Question Number 3

What Is the Difference Between State Act Comp and the Longshore and Harbor Workers’ Compensation Act?

One is state and the other is federal.

Wow! That one was easy. Next!…..What? Not buying it? OK, I’ll try again.

But first, the shortest history in the history of history.

– The Industrial Revolution in the United States during the nineteenth century led to the social consciousness of the Progressive Era,

– Which led to the passage of the first workers’ compensation law in New York State (or Wisconsin, take your pick) in 1910,

– Which led to conflict with the uniformity principles of the Admiralty and Commerce clauses of the U.S. Constitution,

– Which led to the U.S. Supreme Court’s decision in 1917 that the states could not extend their workers’ compensation laws to land based maritime workers while the workers were over the navigable waters of the United States,

– Which led to the enactment of the Longshoremen’s and Harbor Workers’ Compensation Act in 1927 extending federal workers’ compensation protection to shore based workers injured while temporarily on navigable waters,

– Which led to the 1972 amendments to the Longshore Act extending coverage landward to adjoining areas customarily used for maritime purposes,

– Which led to the 1980 U.S. Supreme Court decision that the Longshore Act did not “supplant” state laws, but rather “supplemented” state laws,

– Which led to today. We’re still trying to sort out issues of overlapping and concurrent state/federal jurisdiction in the hundreds of occupations carried on in and around navigable waters that could be either state or Longshore or both simultaneously depending on the state in which the injury occurred and the facts of the case.

So we have workers’ compensation laws in each of the 50 states and the various territories coexisting alongside the Longshore Act.

In an earlier posting (September 9, 2009) I offered my unofficial lists of states with concurrent (dual) jurisdiction and states that have “exclusive” jurisdiction. I’ll repeat the lists here.

Concurrent states – Alabama, Alaska, California, Georgia, Illinois, Indiana, Kentucky, Minnesota, New York, Missouri, Pennsylvania, Rhode Island, South Carolina, Virginia, Wisconsin, West Virginia.

Exclusive states – Florida, Hawaii, Louisiana, Maine, Maryland, Mississippi, New Jersey, Ohio, Oklahoma, Oregon, Texas, Washington.

These lists are subject to change at any time as state insurance laws change.

Note: “Concurrent” in this context simply means that in some states there are some injuries that are covered by both the state’s workers’ compensation law and by the Longshore Act. A state that is listed as “exclusive” on the other hand has amended its workers’ compensation law with language to the effect that if you are covered by a federal workers’ compensation law then you are not covered by that state’s law.

So, the Longshore Act is a workers’ compensation law for the protection of injured workers, just like the laws in the 50 states and the territories. These state laws usually cover different workers, but there is frequent overlap and uncertainty, especially in the “concurrent” states, where injured workers routinely file claims under both state act and Longshore Act and employers face redundant administrative, legal, expense, and sometimes benefit costs.

Here are some differences:

– The Longshore Act usually costs more to insure (see Question Number 7);

– The Longshore Act was enacted by the U.S. Congress as opposed to the state legislatures;

– The Longshore Act is administered by the U.S. Department of Labor and not by state agencies;

– The Longshore Act is generally more liberally administered and pays higher benefits than the state acts;

– The Longshore Act covers “maritime” employees (and there’s a library of case law trying to decide what that means) as opposed to “local” workers covered by state law; and,

– The most important difference for employers is that state workers’ compensation laws and the Longshore Act are separate exposures. And because of the overlapping jurisdictions and coverage uncertainties an employer must be careful and make sure that he has the correct coverage.