In the next two discussions, we’ll look at recent “status” cases involving perennial favorites, clerks and truck drivers.
As we know, an employee must meet both the “status” and “situs” requirements for coverage under the Longshore Act.
First, an extremely brief review of “status”:
Section 2 (33 U.S.C. 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 ….”
That is the “status” provision of the Longshore Act. Who’s covered? Maritime employees are covered, and a few examples are longshoremen, other persons engaged in longshoring operations, and harbor-workers, including a ship repairman, shipbuilder, and ship-breaker. A precise, inclusive interpretation of who meets “status” under the Longshore Act has defied all attempts at definition, and the issue is continuously litigated. But we have learned a few things.
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 covered maritime operations – there is no minimum amount of time regularly spent in maritime duties required to confer full time Longshore Act status.
The “integral” or “essential” test for coverage involves the question of whether the non-performance of the worker’s duties would impede or interrupt the cargo handling or shipbuilding/repair/breaking operations.
There is no moment of injury test for status; coverage is determined by an occupational analysis of the nature of the employee’s overall duties. The worker does not have to be engaged in maritime employment at the moment of injury.
Even if the worker appears to pass the “integral” or “essential” test for coverage, the question remains whether he may be excluded by any of the exclusion provisions in sections 902(3)(A)-(F).
We’ll look at one of these exclusions in connection with a recent case involving a mail clerk.
This is the case of a clerk in the mail services department of a shipbuilder. Situs is met, because the claimant works on the shipbuilding property, and this is where the injury occurred. But what about “status”? Two questions arise:
1) Does the clerk meet “status”, i.e., are the duties integral or essential to the shipbuilding operation, and, if so,
2) Does the Clerical exclusion at section 2(3)(A) apply?
As the Benefits Review Board phrases it, “A claimant satisfies the status requirement as a maritime employee if he is an employee engaged in work which is integral to the loading, unloading, constructing, or repairing of vessels. To satisfy this requirement claimant must only spend at least some of his time in indisputably maritime activities. These activities must be more than episodic, momentary, or incidental to maritime work.”
In the case of the mail clerk, the claimant’s job involved processing incoming, outgoing, and interdepartmental mail; in addition to letters and paperwork, the claimant regularly processed items used in the employer’s shipbuilding operations, according to the claimant’s testimony at the formal hearing, including tools, metal pieces, plates, shafts and pipes. The claimant was also responsible for processing outgoing mail, which included tools, metal plates, pipes, gaskets, valves, and microfiche.
The ALJ reasoned that the claimant’s duties were integral to the shipbuilding process because that process could not continue if the requisite materials were not received and forwarded to their destinations in the shipyard. The claimant’s failure to perform the regular duties receiving, processing, and forwarding incoming shipbuilding materials to their places of destination in the shipyard would be an impediment to the shipbuilding process.
So, the claimant’s failure to do the job would be an impediment to the shipbuilding process. That’s a pretty broad reading of “integral” or “essential”, but in this case, the BRB affirmed that the claimant met status.
The next question was whether or not the claimant was excluded by the section 2(3)(A) exclusion.
Section 2(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.
We know from previous cases that the words exclusively and office modify all four occupations, that exclusively means 100%, and office means a business office.
In our case, the ALJ found that the claimant did not handle only “paperwork and other data”, but rather regularly handled shipbuilding materials and tools. His finding that the duties were not clerical in nature was affirmed by the BRB.
So, the claimant met status because the job duties were essential to the continuation of the shipbuilding operations. And those duties, involving the handling of tools and equipment used in shipbuilding, were not exclusively clerical, so the claimant was not excluded from Longshore coverage.
Result: a mail room clerk is covered by the Longshore Act.
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.