What is a Maritime Worker?
The maritime job titles vary, but one thing is certain: Tankermen, oil rig workers, stevedores, shipyard workers, dockyard workers, wharfies, longshoreman, oil rig employees and other maritime employees are often misclassified as “Seaman” under the FLSA. This may affect your rights to overtime pay, so you should know your rights!
Maritime Workers Misclassified as “Seaman”
Tankermen, oil rig workers, shipyard workers, dock workers, and other maritime employees are told by their employers they are seaman and not due overtime pay. But the truth is, many of them are simply misclassified.
What is a Tankermen?
The tankerman’s role is essential to the safety of our nation’s transport and shipping industry. Tankermen are given responsibility for protecting the environment by ensuring the safe transfer of products to barges. In general, if 20% of your duties fall outside the definition of “Seaman,” you are entitled to overtime.
Tankermen, shipyard and dock workers are normally responsible for various duties, including:
- Loading and unloading ships
- Monitoring product levels in tanks,
- Operating diesel engines,
- Operating cargo pumps,
- Operating tank/pipeline valves.
Most of the positions such as tankermen, shipyard and dock workers and oil rig employees require long work hours and entitle these maritime workers to overtime. Tankermen must be certified by the U.S. Coast Guard with “Tankerman Endorsement,” and they are often required to work an on-call schedule. Many tankermen, dock and shipyard workers, oil rig workers, and other employees in the maritime industry have extreme scheduling demands and work environments, including:
- Exposure to all weather conditions, including extreme temperatures, rain, ice, sleet, and wind.
- Requirement to adapt to a variety of schedules and hours, including long hours during transfers.
- Ability to work weekends, holidays, and at night.
- Duties as assigned which fall outside the definition of “Seaman” under the FLSA.
Stevedores, wharfies, and longshoremen misclassified under the FLSA
Section 13(b)(6) of the FLSA provides an exemption from overtime pay for “any employee employed as a seaman.” As explained in 29 C.F.R. § 783.31,
In accordance with the legislative history and authoritative decisions as discussed in §§ 783.28 and 783.29, an employee will ordinarily be regarded as “employed as a seaman” if he performs, as master or subject to the authority, direction, and control of the master aboard a vessel, service which is rendered primarily as an aid in the operation of such vessel as a means of transportation, provided he performs no substantial amount of work of a different character. This is true with respect to vessels navigating inland waters as well as ocean-going and coastal vessels.
When deciding whether an employee is “employed as a seaman,” the duties of the employee must qualify as “service which is rendered primarily as an aid in the operation of such vessel as a means of transportation.” Id. Employees who make repairs to vessels between navigation seasons would not be “employed as” seamen during that period. 29 C.F.R. § 783.33.
An employee will be regarded as “employed as a seaman” if the work performed as a whole meets the test stated in 29 C.F.R. § 783.31, even though during the workweek the employee performs some work of a nature other than that which characterizes the services of a seaman, if the amount of such other “non-seaman’s” work is not substantial. 29 C.F.R. § 783.37. “For enforcement purposes, the Administrator’s position is that such differing work is ‘substantial’ if it occupies more than 20 percent of the time worked by the employee during the workweek.” Id. Because the workweek is the unit of time used in determining the applicability of this exemption, the workweek is the period of time used in determining whether a substantial amount of non-seaman’s work has been performed so as to make the exemption inapplicable. 29 C.F.R. § 783.49.
Understand the seaman Exemption Under the FLSA
The FLSA exemption titled the “seaman exemption” has certain regulations that govern who can be classified under this exemption. Many times, workers employed at docks, ports and shipyards as stevedores, longshoremen, or similar positions are primarily involved in loading and unloading vessels, which means the seaman exemption does not apply to them even if they travel on the vessel.
There are two primary tests to determine the seaman exemption and an employee will be regarded as “employed as a seaman” only if the following criteria are met:
- The worker performs a service which is primarily aiding in the operation of the vessel as a means of transportation, the employee must not perform a substantial amount of work of a different character.
- The seaman exemption depends on the character of the work performed, not the job title or the place where they work.
- Most workers employed in industrial work involving dredging, in forestry or lumbering operations, or in construction work like dock, levee or structure building, often do not qualify for this exemption either.
Dock and shipyard workers, oil rig workers, and other employees in this industry work long hours under extreme conditions. If you work for in the maritime industry you should learn your proper FLSA industry classification so that you are being paid according to the FLSA.