This question comes up regularly. And, as usual, I don’t have a straight answer; just some thoughts on how to deal with the question.
So, leaving a discussion of “situs” for another time, do truck drivers have “status” for coverage under the Longshore Act?
But, it doesn’t depend on whether or not the worker’s job title is “truck driver”. It depends on the nature and location of the job duties, or in other words, on status and situs.
With regard to “status”, section 902(3) of the Longshore Act defines the term “employee” as “any person engaged in maritime employment ….” Note: “any person”.
Sections 902(3)(A) – (H) as well as various provisions of section 903 contain express exclusions from coverage. None of these exclusions mentions “truck driver”.
So, whether or not a truck driver is covered by the Longshore Act depends on the same issues of status and situs that apply to any other employee.
Now, here’s your chance to use some of those shorthand references that I listed in last post’s Glossary: Ford, Caputo, and Schwalb.
Let’s discuss the example of a worker who has the irrelevant job title “truck driver” in light of the primary holdings of the Ford and Caputo and Schwalb cases. That is:
– unloading of cargo does not end at the first landward stop, but all intermediate steps in the process of loading/unloading are covered (Ford),
– if even a small percentage of a worker’s regularly assigned duties are indisputably maritime in nature then he is a full time maritime worker under the Longshore Act (Caputo), and
– a worker whose duties are an integral or essential part of the loading/unloading process has status under the Longshore Act (Schwalb).
So, all we have to do is ask what the worker does and where does he do it, and then see if we can apply these principles to the question of coverage.
Keep in mind that there are typically several steps involved in the loading/unloading of cargo. For example, a container comes off a ship and is placed dockside. It may then be moved by different personnel into a warehouse. It is then emptied (unloaded) in the warehouse by other workers, where and when the cargo is again moved around depending on the timing and location of its delivery. Finally (maybe) it is then transported to a railhead where it is loaded on to railcars for its final delivery to land consignees. Of course, the same sequences apply in either direction.
There are many possible permutations of this multi-step process. The point is that all of the employees involved in the series of activities, up until the point when the cargo is placed on the railcars for direct overland delivery, are covered by the Longshore Act since they are involved in an essential intermediate step in the unloading/loading process.
This includes truck drivers any of whose duties include regularly transporting the container/cargo from the dock to the warehouse, between warehouses or storage points within the terminal, and to the railhead (or back in the other direction). These drivers are involved in intermediate steps in loading/unloading, and remember, an employee is not required to spend most, or even a substantial part, of his time in maritime activities to have status. A maritime duty that is regular, even though a small part of overall regular duties, confers status.
There are limits, of course. At some point the cargo has been unloaded and has entered land transportation, but the limit may not be easy to recognize in a multi-stage, multi-location process.
The truck driver whose only duty is to drive the truck transporting cargo or still unloaded containers from the terminal directly to inland consignees is most likely not covered, since this is not an intermediate step. The unloading process has ended when the cargo is placed on his truck. Conversely, the loading process begins when workers remove the cargo from his truck or railcar after its trip from its inland origin.
I can see that this discussion is not as helpful as I’d hoped it might be. Let’s just leave it as an outline for how to approach the issue of the Longshore status of a truck driver.
- Disregard job title. That isn’t going to give us the answer.
- The employee satisfies Schwalb in that moving cargo around is an integral part of the loading/unloading process. The question is at what stage in the process he is involved.
- Try to identify the final step at which the cargo is put into land commerce for delivery to the consignee (or when it leaves land commerce in the other direction). Everything before (or after) is an intermediate step. All intermediate steps confer status.
- Consider the full range of the employee’s regularly assigned duties to identify any maritime component, no matter how small. Any regular maritime duty confers full time status.
- If our truck driver is involved in an intermediate step in cargo handling, even to a small but regular degree, he is covered by the Longshore Act.
As always, make sure that you have the correct insurance coverage.
ABOUT THE AUTHOR
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 AEU's Longshore Insider.