Employers of Jones Act seamen should be aware of a new Fifth Circuit ruling further narrowing the scope of what a “seaman” is under the Fair Labor Standards Act (FLSA). Interestingly, the definition is not the same as under the Jones Act.
The Fifth Circuit held that Jones Act workers on a vessel whose work does not aid in the operation as a means of transportation are not seamen for the purposes of the FLSA, and, therefore, these non-seamen workers are entitled to overtime pay.
In Adams v. All Coast, LLC, the Fifth Circuit ruled that the main question to determine if a worker is a Jones Act seaman for the purposes of FLSA is whether the primary purpose of the particular individual’s work is the safe navigation of the ship.
Adams reinforces the notion that the status of a worker as either a “seaman” or other worker relies heavily on the job description and the actual work performed. Adams means that many crewmembers that may have previously been exempt are now entitled to overtime under the FLSA.
So who is a seaman?
This Fifth Circuit ruling leaves many challenging issues for employers of Jones Act seamen.
The most glaring issue is the intersection of Jones Act seamen and FLSA non-seamen. The classification as a seaman under the Jones Act but not a seaman under the FLSA is problematic.
There are numerous jobs on a vessel that do not directly aid in the operation as a means of transportation but still are considered Jones Act seamen. How will these types of Jones Act seamen be classified under the FLSA?
Another issue concerns Jones Act seamen who perform multiple jobs. How will courts separate their job duties for the purposes of the Jones Act and FLSA? How will employers be able to determine what jobs are distinct and what jobs overlap?
All of these questions present new challenges to employers regarding the pay structure for Jones Act seamen and the possibility that part of the crew (those not involved with navigation) would be entitled to overtime, but another part would not be.
All at sea…
In Adams, Jones Act seamen on a liftboat sought overtime pay in accordance with the FLSA, claiming that they were not exempt from overtime because they were not “seamen.”
The workers performed two distinct jobs: traditional maritime and nautical duties some of the time, and operating a crane to move personnel and equipment between the liftboat and the dock, offshore worksite platforms, and other vessels.
The workers argued that their main job was crane operation, which had nothing to do with the operation of the vessel as a means of transportation. The Fifth Circuit agreed.
…But not all are seamen
This ruling reinforces the Fifth Circuit’s narrow definition of “seaman” for the purposes of the FLSA. An employee is a “seaman” if the employee’s service is primarily offered to aid the vessel as a means of transportation, provided that the employee does not perform a substantial amount of other work.
Assisting with loading or unloading at the beginning or end of a voyage was not connected with the operation of the vessel as a means of transportation.
Other tasks, such as construction, dredging, digging, or other essentially industrial or excavation work, are not connected with the operation of the vessel as a means of transportation.
The key inquiry is the characteristic of the work performed. There remains the uncertainty over the exact nature of how Jones Act seamen are classified under the FLSA.
The Court distinguished two earlier Fifth Circuit rulings: Owens v. SeaRiver Maritime and Coffin v. Blessey Marine Servs., Inc.
In Owens, the workers primarily loaded and unloaded a permanently moored vessel. The Court ruled that the workers were not seamen because safe loading and unloading only prepares a vessel for navigation but does not aid in actual operation as a means of transportation. This ruling narrowed the scope of “seamen.”
In Coffin, the workers loaded and unloaded liquids. The Court ruled that these workers were seamen because the efficient loading and unloading contributed to the efficient movement of the vessel, thus aiding in the actual operation as a means of transportation. The Court ruled that loading and unloading are not always non-seaman work and emphasized that the factual context of the work is always important when deciding whether an employee is exempt, as a seaman.
In Adams, the Court emphasized the primary question to determine if a worker is a seaman: Is the primary purpose of a particular individual’s work the safe navigation of the ship?
Further, the Department of Labor standards for seamen create a presumption that loading and unloading are non-seaman work. The seaman exception to overtime pay did not apply when the work had no maritime tincture. Therefore, if the primary purpose of an employee’s work is not the safe navigation or an operation of the vessel as a means of transportation, then that work is not seaman’s work. If a worker spends a substantial time doing non-seaman work, then that worker is not a seaman and is not exempt from overtime pay under the FLSA.
The Court determined that the workers had two distinct jobs. On the one hand, the workers performed traditional maritime and nautical duties while aboard the vessel; on the other hand, the workers stopped their nautical duties to operate a crane. The Court focused on the fact that the two distinct jobs did not overlap. The crane operation had nothing to do with the operation of the liftboat as a means of transportation; therefore, the crane operation was not seaman’s work, but rather industrial work of loading or unloading.
Given this new decision, carefully drafting employment contracts and job descriptions—as well as keeping a watchful eye on the actual duties that are being performed by employees—will be the key for Jones Act seamen employers to avoid FLSA litigation. As always, it is best to consult with experienced counsel when navigating these complex issues.