Many Aren’t “Seamen” and are Owed Overtime PayThe Fair Labor Standards Act requires employers to pay overtime to workers for all hours worked over 40 in one workweek. But if the worker falls into an exempt category – for instance, seamen – the employer does not have to pay overtime. Employers often misclassify certain maritime employees as seamen and pay them a day rate with no overtime. This practice is illegal when the worker is not in fact a seaman.
Tankermen, shore tankermen, oil rig workers, shipyard workers, dock workers, and other employees in the maritime industry are misclassified most. While some tankermen do fall under the overtime seaman exemption, a very large number are being improperly lumped into this category and being deprived of their proper overtime pay.
The following are common duties in these professions:
- Loading and unloading ships
- Monitoring product levels in tanks
- Operating cargo pumps
- Conducting transfers of liquid cargos
- Following all safety, environmental, and barge processes to conduct incident-free transfers
- Conducting inspections of barges prior to conducting transfers
If a worker performs some or all of these, there is a good chance he should probably not be classified as a seaman and should receive overtime pay. There are various requirements to become a tankerman, such as having a U.S. Merchant Mariner’s endorsement as a PIC/DL, having a current and valid TWIC, being safety-conscious, perform physically demanding work, being on-call and able to travel, and pass all physical examinations and tests.
The term “seaman” is not defined. To determine if an employee can be qualified as an exempt seaman, courts look at the character of the work performed, not the employee’s job title or where the work is performed. If the work is done primarily as an aid in operating a vessel as a means of transportation, then the employee can be classified as a seaman and is not due overtime. Furthermore, when a worker performs both seaman’s and non-seaman’s work, he is an exempt seaman unless the non-seaman’s work is substantial. Substantial is defined as at least 20%. This means that any worker who spends at least 20% of his working hours doing non-seaman’s work (i.e. activities that require a tankerman’s license) is not a seaman and must be paid overtime.
Under this analysis, barge tenders have been determined to be exempt seamen. Barge workers and those with similar responsibilities of attending to lines and anchors, putting out running and mooring lights, or pumping out bilge water are not required to be paid overtime, although industrial workers on barges are not.
In one case, employees filed a class action lawsuit against SeaRiver Maritime, Inc. alleging that they were improperly classified as exempt seamen, and should therefore recover unpaid overtime wages. The court determined that the employees were not seamen, even though they were part of tugboat crews working on a stationary landing barge. Their primary responsibility was loading and unloading petroleum and they should have been paid overtime.
The potential recovery in misclassification suits can be significant, especially in class and collective action suits in which the claims of many workers are brought in a single case. In these situations, there is real strength in numbers. Workers who have been improperly classified as seamen can recover up to double their back overtime pay due plus attorney’s fees.
If you are a current or former Tankermen or Shore Tankermen and believe that you may have a claim for unpaid overtime or would like to get more information, please call us at 1-866-559-0400, email us at firstname.lastname@example.org or submit your information using our convenient Case Evaluation Form for a FREE and CONFIDENTIAL review of your circumstances.