Overtime Pay Due to Crew of Vessel: Crane Operation on Lift boat Is Not Seaman’s Duty
Adams v. All Coast, L.L.C., 988 F.3d 203 (5th Cir., Feb. 11, 2021)
Overtime pay for those employed in the offshore industry has been the subject of several cases over the past few months. In Hewitt v. Helix Energy Sols. Grp., 983 F.3d 789 (5th Cir. 2020; rehearing en banc granted, 2021 U.S. App. LEXIS 6848 * , __ F.3d __ , 2021 WL 869058 [5th Cir. Mar. 9, 2021]), the Fifth Circuit addressed whether a toolpusher working offshore fell within the “highly compensated employee” exemption for overtime pay working over 40 hours per week. The California Court of Appeal, Second District held that seamen, though non-residents of California and employed in Louisiana by a Louisiana company, were subject to California wage overtime laws for work performed in California. (Gulf Offshore Logistics, LLC v. Superior Court Of Ventura County, 272 Cal.Rptr.3d 356 [Court of Appeal, Second District, Division 6, 2020], pet. for rev. denied, 2021 Cal. LEXIS 2190 [Ca. S.Ct. March 24, 2021]).
Adams and others were hired by All Coast as able bodied seamen and a cook to work on its lift boats which serviced offshore facilities on the Outer Continental Shelf. The employer asserted none were entitled to overtime pay as they were exempt as seamen. The trial court agreed and granted the employer's Motion for Summary Judgment.
To fall within the seaman exemption the employer bears the burden of proving that the employees are “subject to the authority, direction, and control of the master” (988 F.3d at 207; quoting Coffin v. Blessey Marine Servs., Inc., 771 F.3d 276, 279 [5th Cir. 2014]) and the work “is primarily offered to aid the vessel as a means of transportation.” (id.)
The regulations promulgated by the U.S. Department of Labor provide that loading and unloading freight at the beginning and end of the voyages does not aid in the operation of a vessel as a means of transportation. Also, employees engaged in construction on floating equipment are employed in industrial and excavation work (988 F.3d at 207). Though the crew performed seaman’s duties while the vessel was underway, most of their time was spent operating cranes when the vessel was jacked up adjacent to an offshore facility. They were, thus, not engaged in seaman’s activities while operating cranes as this was not “in aid of the vessel as a means of transportation” (id at 210). “It was as though they were performing two discrete jobs: upkeep of the boat and operation of the crane” (id. at 211).
Having determined that the crew were not exempt while operating the cranes, the panel then turned to the question of whether the cook was exempt as a seaman. If the crewmen were not aiding the vessel as a means of transportation, then neither was the cook. Also, if there were passengers, the trial court had to consider the time spent cooking for any passengers and whether the services were in aid of the vessel as a means of transportation. A cook spending more than 20% of the time cooking for non-crew members has spent a “substantial amount of time on differing work” (Id. at 214, citing Coffin, op. cit. and 29 C.F.R. § 783.31).
The trial court erred granting summary judgment for the employer. On remand, it must consider how much time the crew spent operating cranes and then how much time the cook prepared meals for them when not performing seaman’s work and for any passengers.
