Many Tankermen Are Not “Seamen” and are Owed Overtime Pay
The 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.
Top Misclassified Workers Include:
- Tankermen
- shore tankermen
- oil rig workers
- shipyard workers
- dock workers
- and other employees in the maritime industry.
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 which should not be considered exempt:
- 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 duties, there is a good chance he should probably not be classified as a seaman and should receive overtime pay.
Requirements to Be a Tankerman
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.
What is a Seaman?
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.
Barge Tenders ARE Seamen
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.
Example Case of Improperly Classified Seamen
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 were 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.
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