Who Is Covered by LHWCA?

Employees who are injured at work are almost always entitled to workers’ compensation. Most private employees are covered by state workers’ compensation laws. 

Employees of the federal government are covered by the Federal Employees Compensation Program. Some private employees are also covered by federal law. The Longshore and Harbor Workers’ Compensation Act (LHWCA) and two extensions of that law require certain private employers to provide federal workers’ compensation benefits that are typically more generous than those required by state law.

The LHWCA is often said to cover “maritime” workers. However, the scope of coverage is much more specific. With some exceptions, the LHWCA covers employees of private businesses who work in maritime employment on navigable waters and certain adjoining areas.

Employees

The LHWCA covers employees of private businesses. Independent contractors — generally meaning self-employed individuals — are not covered.

On occasion, an employer will misclassify an employee as an independent contractor. Employers misclassify workers to avoid paying the employer’s share of FICA taxes. Misclassification also allows an employer to avoid complying with a variety of laws, including minimum wage and overtime laws, laws that prohibit discrimination or require the employer to provide family leave, and laws that require employers to contribute to unemployment insurance funds and to cover employees with workers’ compensation insurance.

Whether a worker is an employee or an independent contractor depends on a legal test, not on the label attached by the business that pays the worker. When a worker only provides services to one business, when the worker provides the same services that the business provides to its customers, and when the worker is subject to close supervision and control by the business, the law might require the worker to be classified as an employee. Any worker who should be classified as an employee, and who would be covered by the LHWCA as an employee, is entitled to workers’ compensation benefits.

Navigable Waters

The definition of navigable waters can be complicated. In simple terms, the LHWCA applies to maritime workers who are employed to perform jobs on the ocean and on adjacent land, including:

1. piers;
2. wharves;
3. dry docks;
4. terminals;
5. building ways;
6. marine railways; and
7. areas customarily used in the loading, unloading, repairing, or building of vessels.

While the ocean is the body of water most commonly associated with LHWCA claims, the Great Lakes and certain rivers and channels are also navigable waters. If the water is used for the transportation of cargo into or from the United States or between states, the law regards the water as “navigable waters.”

Maritime Workers

Not every job that happens to be performed on a pier or next to the ocean is covered by the LHWCA. The law covers employees who are engaged in maritime employment.

As the title of the law suggests, the employees who are most obviously covered are Longshore and Harbor workers. Longshore employees load and unload ships. Harbor workers build, repair, or disassemble ships.

Other employees are covered as maritime workers if their work relates directly to maritime vessels. For example, truck drivers who move cargo from place to place within a harbor, mechanics who repair cranes that are used to unload cargo, and laborers who paint, clean, or perform other duties in a harbor are generally covered as maritime workers.

Crew members and masters of vessels are not covered by the LHWCA. They are typically covered by the Jones Act.

Workers who are hired by a ship master to unload ships that weigh less than 18 tons are not covered by the LHWCA. Nor are employees who work on the construction of recreational vessels that are less than 65 feet in length or on the repair of any recreational vessel. Recreational vessels are those that are operated mainly for pleasure, or that is leased or chartered for another person’s pleasure.

Certain other employees are not regarded as working in maritime employment, even if they work in a harbor. Those employees include:

1. Workers who only perform clerical or data processing duties.
2. Security guards.
3. Employees of retail stores, museums, or recreational operations that happen to be located adjacent to navigable waters.
4. Most marina employees unless they are engaged in building or expanding the marina.
5. Suppliers of a covered employer who are temporarily present in the harbor (for example, to take orders or make deliveries).

Other than crew members who are covered by the Jones Act, employees who work on or near navigable waters but whose work does not meet the definition of maritime employment are usually covered by state workers’ compensation laws rather than the LHWCA.

Extensions of LHWCA

The LHWCA has been extended to cover certain employees of private businesses who were not covered by the original law. The first extension is known as the Defense Base Act (DBA). 

The DBA covers overseas government contractors and subcontractors. The coverage generally requires benefits to be provided by private employers working for or providing services to the military or on military bases, working on national defense contracts, or working on certain foreign assistance contracts, provided that the work is performed outside of the United States.

Most DBA claims arise in foreign countries where the United States has a strong military presence. Iraq is an example of a country where many civilians work on military bases or are employed by contractors who serve the American military. However, the US has military bases all over the world. Civilian employees on all of those bases are covered by the DBA.

The second major extension of the LHWCA is the Outer Continental Shelf Lands Act (OCSLA). The OCSLA covers workers who are employed on the outer continental shelf in a job that relates to the extraction of oil and gas from the seabed. Workers on drilling rigs and employees who support offshore drilling operations are generally covered by the OCSLA.

The specific legal tests that determine whether an employee is entitled to benefits under the LHWCA, the DBA, and the OCSLA can be complicated. A law firm that handles both state and federal workers’ compensation claims is in the best position to advise injured workers about the benefits they should receive for a work injury.