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.

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016-2019 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com