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Longshore Employment Defined.

Coverage under the Longshore and Harbor Workers’ Compensation Act requires a master-servant relationship between employer and an employee. Crowell v. Bensen, 285 U.S. 22, 54 (1932). The Act defines employee as “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.” 33 U.S.C. § 902(3). The Act also sets out a long list of potential employees who do not fit the criteria: clerical and secretarial workers, marina workers, fishermen, etc.

The issue of employment is usually reached int he context of an alleged independent contractor seeking benefits. Just because an employer has not secured LHWCA coverage for an employee does not mean that that worker is not covered under the Act as an employee. Tanis v. Rainbow Skylights, 19 BRBS 153 (DOL Ben. Rev. Bd. 1986).

​Who is an employee for LHWCA?

Three tests have been used in cases under the LHWCA to determine whether an employer-employee relationship exists. A judge can rely on the factors enunciated in the Restatement (Second) of Agency § 220 (2), (“Restatement test”) which include the extent of control, kind of occupation, and method of payment. Ronan v. Maret School, Inc., 1 BRBS 348 (1975), aff’d mem., 527 F.2d 1386 (D.C. Cir. 1976). Applying the agency factors to determine whether a claimant is an “employee” is a matter for the judge as trier of fact. Melech v. Keys, 12 BRBS 748 (1980).

The Board has held that the “right to control details of work” test is also an appropriate method of determining whether a claimant is indeed an employee or an independent contractor. Burbank v. K.G.S., Inc., 12 BRBS 776 (1980). A go-go dancer was found to be an employee rather than an independent contractor. This is a fact-sensitive analysis.
     
The “relative nature of the work test” inquires into

  • the nature of the claimant’s work, and
  • the relation of that work to the regular business of the employee.

In evaluating the nature of a claimant’s work, the fact-finder should consider the skill required to do the work, the degree to which the work constitutes a separate calling or enterprise, and whether the claimant’s work is a regular part of the employer’s regular work.Carle v. Georgetown Builders, Inc., 19 BRBS 158 (1986).

Other potential employees.

The LHWCA does not cover volunteers. Symanowicz v. Army & Air Force Exch. Serv., 672 F.2d 638, cert. denied, 459 U.S. 1016 (1982).Corporate officers and shareholders are not precluded from being employees under the LHWCA if injured when performing the duties of an employee. A partner or owner is not an employee.

Download the Longshore & Harbor Workers’ Compensation Law Handbook

Download Our Longshore & Harbor Workers’ Compensation Law Handbook

This is the 2023 edition of Gregory Lois’ Handbook for defending Longshore and Defense Base Act claims. This “Go To” Handbook covers the basics of the Longshore and Harbor Workers’ Compensation Act with references to the LHWCA, practical tips for defending claims brought under the Act, and review of recent relevant case law. This 2023 edition contains references to the latest rate and benefit information.

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We represent insurance carriers, self-insured employers, third party claim administrators, and employers before the New York State Workers' Compensation Board. We handle cases from cradle-to-grave. We want to be by your side, moving cases aggressively to closure from the start of litigation all the way through to settlement.

We only assign one attorney and one paralegal to each case. This means that your team members always have one contact to go to for any questions. We do not have 'hearing attorney' or a 'negotiation attorney' or 'appeal department' or anything else! All of our attorneys handle all of those roles – meaning cases are not 'passed around' as they move through the litigation process. Your risk professional or adjuster always knows who is assigned – because the attorney does not change.

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