The Fair Labor Standards Act (“FLSA”) exempts seamen who work on American vessels from its overtime requirements and seamen who work on non-American vessels from its minimum wage and overtime requirements. The term seaman for purposes of these exemptions is discussed below.
A seaman is defined as someone who:
- works on a vessel;
- is a master or subject to the authority, direction, and control of the master;
- works primarily as an aid in the operation of the vessel as a means of transportation
- performs no substantial amount of work of a different character
29 CFR 783.31 See also Sternberg Dredging Co. v. Walling, 158 F. 2d 678 (8th Cir. 1946); Walling v. Haden, 153 F. 2d 196 (5th Cir. 1946), certiorari denied 328 U.S. 866; Walling v. Great Lakes Dredge & Dock Co., 149 F. 2d 9 (7th Cir. 1945), certiorari denied 327 U.S. 722; Douglas v. Dixie Sand and Gravel Co., (E.D. Tenn.) 9 WH Cases 285).
Employees do not lose their status as seaman by performing non-seaman duties so long as the time spent on the non-seaman duties is not substantial. The DOL has determined that employees that performs non-seaman duties more than 20 percent of their time are not seaman for purposes of the FLSA. 29 CFR 783.37 An analysis of the time worked in a workweek (seven consecutive 24-hour periods) will be used to determine whether employees perform non-seaman duties more than 20 percent of their time. 29 CFR 783.49
Crew members who are typically seamen
Seamen include crew members such as sailors, engineers, radio operators, firemen, pursers, surgeons, cooks, and steward, if they meet the criteria set forth above. Employees do not lose their status as seamen just because they perform an insubstantial amount of work that is not associated with the operation of a vessel. An example of such work is loading and unloading of freight at the beginning or end of a voyage. 29 CFR 783.32
Work performed is determinative
Whether an employee is a seaman depends on the work performed by the employee and not solely on a job title or the work location, although those may be among several factors relied on in making the determination. Walling v. Haden, 153 F. 2d 196 (5th Cir. 1946), certiorari denied 328 U.S. 866;Cuascut v. Standard Dredging Corp., 94 F. Supp. 197 (D. P.R. 1950). Working on a vessel is not sufficient by itself to qualify an employee as a seaman nor does performing some maritime duties. The employee must provide services that are primarily an aid in the operation of the vessel as a means of transportation. Examples of employees who typically do not qualify as seaman include, repairmen who only perform work between navigation seasons (See Desper v. Starved Rock Ferry Co., 342 U.S. 187 (1952); but see Walling v. Keansburg Steamboat Co., 162 F. 2d 405 (3rd Cir. 1947) where a repairman was found to be a seaman where he also worked during the navigation period), stevedores and longshoremen ( Knudson v. Lee & Simmons, Inc., 163 F. 2d 95.), and roust-abouts. These employees do not qualify as seaman even if they perform seaman duties on a periodic basis.
Employees who are not seamen
The following are classes of employee that are not typically considered seamen:
- concessionaires and their employees,
- employees on floating equipment who construct docks, levees, revetments, or other structures,
- employees engaged in dredging, including captains and deck hands (Cuascut v. Standard Dredging Corp., 94 F. Supp. 197 (D. P.R. 1950); Walling v. Great Lakes Dredge & Dock Co., 149 F. 2d 9 (7th Cir. 1945), certiorari denied 327 U.S. 722; Walling v. Bay State Dredging & Contracting Co., 149 F. 2d 346 (1st Cir. 1945), and
- employees engaged in digging or processing sand, gravel, or other materials (Sternberg Dredging Co. v. Walling, 158 F. 2d 678 (8th Cir. 1946); Walling v. Haden, 153 F. 2d 196 (5th Cir. 1946), certiorari denied 328 U.S. 866; Walling v. Great Lakes Dredge & Dock Co., 149 F. 2d 9 (7th Cir. 1945), certiorari denied 327 U.S. 722).
Employees who primarily perform seaman duties do not lose their seaman status by acting as a watchmen on a short-term, periodic basis. If the employer performs watchmen duties for an extended period of time, they are not seamen. Desper v. Starved Rock Ferry Co., 342 U.S. 187 (1952)
Barge tenders are typically considered to be seamen, so long as the majority of their time is spent performing seaman duties. Seaman-type duties performed by barge tenders include, attending to lines and anchors, putting out running and mooring lights, pumping out bilge water, and other similar activities. Gale v. Union Bag & Paper Corp., 116 F.2d 27 (5th Cir. 1940), cert. den. 313 U.S. 559 (1941) Employees who perform barge tender duties periodically, but spend most of their time performing other duties, such as loading, unloading, and custodial services are not seaman. McCarthy v. Wright & Cobb Lighterage Co., 163 F.2d 92 (2nd Cir. 1947); Anderson v. Manhattan Lighterage Corp., 148 F.2d 971 (2nd Cir. 1945), certiorari denied 326 U.S. 722; Woods Lumber Co. v. Tobin, 199 F.2d 455 (6th Cir. 1952)
The FLSA does not define the term vessel, so the DOL relies on the definition of vessel set forth in 1 USC 3. In that statutes, vessel is defined as any watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” The Federal Boating Act or 1958 and the Documentation Regulations administered by the Bureau of Customs exclude seaplanes and aircraft from the definition. 29 CFR 783.39
A vessel is considered to be American for purposes of the FLSA if it is documented or numbered under the laws of the United States, although there are a few exceptions. 29 USC 203(p); 29 CFR 783.38 A vessel is considered documented if it has been registered, enrolled, and licensed by the Bureau of Customs. 29 CFR 783.40 A vessel is considered numbered if it is number under the provision of any Federal law or under any State numbering system approved by the Department under which the U.S. Coast Guard operates. 29 CFR 783.41 An example of a American vessel that may not need to be documented or numbers is a vessel which operates exclusively in the internal waters of a state which do not join up with a navigable water touching on another state. 29 CFR 783.42
Computing minimum wage for seamen
An employer operating an American Vessel may determine whether they meet minimum wage requirements for seaman by using a unit of time other than the commonly used workweek, if it is customary in the related industry to do so. For example, if it is customary to pay a seaman on a monthly or voyage basis, an employer may meet the minimum wage requirement if the seaman is compensate at the minimum wage rate for each hour worked in the designated period. 29 USC 206(3); 29 CFR 783.43
The reasonable costs of board and lodging may be included in the minimum wage calculation if it is industry custom, unless there is a collective bargaining agreement to the contrary. 29 CFR 783.44
Hours worked and off-duty periods
Employers are required to pay seaman for all hours worked. 29 CFR 783.46 They are not required to pay seaman for off-duty periods. Off-duty periods are those periods of time when the seamen are free to use their time for their own purposes. The fact that a seaman may called into service does not convert off-duty time to hours worked. 29 CFR 783.47
An employer may treat a seaman as exempt when the seaman performs other duties that are exempt under the FLSA. 29 CFR 783.50