Following up on its landmark 2014 decision in Coffin v. Blessey Marine Servs., Inc., 771 F.3d 276 (5th Cir. 2014), previously reported here on Striding the Quarterdeck, which concerned the applicability to tankerman of the seaman exclusion to the overtime wage provisions of the Fair Labor Standards Act (29 U.S.C. §§201-21, “FLSA”), the Fifth Circuit has held in Halle v. Galliano Marine Serv., L.L.C., — F.3d —, 2017 WL 1399697 (5th Cir. Apr. 19, 2017) that remotely operated vehicle (ROV) technicians aboard offshore oilfield support vessels are not seaman for purposes of the FLSA, and thus are entitled to overtime pay as provided in the FLSA. Unlike the result in Coffin, in which tankerman (crew members responsible/trained for loading/unloading of liquid cargoes from tank barges) were held to be FLSA seaman and thus exempt from from the overtime coverage of the FLSA, the ROV technicians in Halle were held to be non-seaman and thus entitled to overtime.
The district court in Halle originally held on summary judgment that ROV technicians do qualify as FLSA seaman, on the basis that ROVs are “appurtenances” of the oilfield support vessels where the technicians live and work, and that their work is inherently tied to navigational decisions on the oilfield support vessels from which the ROVs are deployed:
[The ROV technicians] presence on the water was critical to the primary purpose of [their] employment, which was to operate the ROV underwater. Although [the technicians do] not captain the support vessel, the support vessel’s navigation depended wholly on [the technicians’] navigation of the ROV. [The technicians] inform the ROV support vessel captain regarding where they needed to be so that the ROV cable would reach, which affected the safe navigation of the vessel. Additionally, like the plaintiffs in Coffin, [the technicians] work was directly tied to the support vessel aboard which [they] ate, slept, lived, and worked.
Halle v. Galliano Marine Serv., LLC, 2016 WL 1558829, at *4 (E.D. La. Apr. 18, 2016) (district court opinion).
On appeal of this res nova issue, the Fifth Circuit reversed, based in part on the general analytical rule that the seaman exemption to the FLSA must be narrowly construed “to minimize the number of employees who lose the Act’s protections.” Halle, 2017 WL 1399697, at *2. Likewise, the Fifth Circuit reiterated the fundamental proposition that “the definition of ‘seaman’ in the Jones Act [i.e. for purposes of Jones Act negligence claims] is not equivalent to that in the FLSA,” and thus “it is error for a court to resolve an FLSA case by resorting to [Jones Act] legal standards” for a determination of “seaman” status. In light of these two preliminary comments, the Fifth Circuit went on to explain why the district court’s resort to the ROV-as-“appurtenance” analysis, derived from Jones Act caselaw, was legal error.
The Halle court applied the two-prong FLSA “seaman” status test described in Coffin (and derived from the text of the FLSA itself and its supporting regulations, specifically 29 C.F.R. §783.31 et seq.), which considers “[1] whether the employee performs as ‘master or subject to the authority, direction, and control of the master aboard a vessel’ . . . ; [and] [2] whether the ‘employee’s service is primarily offered to aid the vessel as a means of transportation.’” Id. at *3.
As an initial point of summary judgment evidence/procedure, the Fifth Circuit held that competing affidavit testimony on the first prong – i.e. the plaintiff claimed he was not subject to the direction of the oilfield support vessel’s master, whereas other employees testified that he was so controlled – would preclude summary judgment on its own.
Even so, the Fifth Circuit went on to hold that the second Coffin prong (aid to the vessel as a means of transportation) was dispositive in any event. On this prong, the court relied primarily on a more than seventy-year-old decision in Walling v. W. D. Haden Co., 153 F.2d 196 (5th Cir. 1946), which held that employees assigned to vessels in support of shell dredging operations, who only operated the dredge equipment that had nothing to do with the navigation of the vessels, were non-seaman and thus entitled to FLSA overtime. The Halle court held that the ROV technicians’ operation of ROVs, as shipboard equipment that had no direct relation to the navigation of the vessel, were analogous to the dredge equipment in Walling, and thus the ROV technicians were likewise non-seaman and FLSA-eligible.
The court also rejected the district court/defendants’ argument under the second Coffin prong that work done to the ROVs as “appurtenances” of the vessels could somehow qualify as work done to/for the vessels themselves, noting that this argument was unsupported by caselaw, and that Walling contradicted it as well. Likewise, the Fifth Circuit rejected the district court’s ruling that that ROV technicians’ communication of GPS coordinates to vessel masters for purposes of moving the vessel as part of ROV operations satisfied the second prong. Specifically, the court noted that “Department of Labor (‘DOL’) regulations [provide that] ‘work other than seaman work becomes substantial if it occupies more than 20 percent of the time worked by the employee during the workweek,’ and held that any de minimis communications of coordinates vis-à-vis ROV operations would not satisfy this 20% rule of thumb, nor the general “primary” aid-of-transportation aspect of the second Coffin prong:
While giving coordinates alone can perhaps be characterized as contributing to navigation, the question this Court must then answer is what proportion of [ROV technicians’] time is spent on that seaman’s work. Based on the description of [the ROV technicians] work responsibilities, it seems that transmitting the coordinates, and even the entire process of calculating those coordinates, does not take up a demonstrable majority of [that] work time. ROV Technicians control ROVs remotely to provide “emergency backup for underwater drilling operations[,] … turn subsea valves, disconnect and realign underwater lines, inspect underwater structures, and place marking beacons on the sea floor.” They are also responsible for maintaining and servicing the ROVs themselves. Even assuming that it takes an ROV Technician several hours every few days to calculate coordinates and then a few additional minutes to communicate that information to the captain of the support vessel, this does not clearly account for 80% of the estimated eighty-four plus hours worked weekly by ROV Technicians.
Halle, 2017 WL 1399697 at *4.
In addition to answering the specific res nova question as to the FLSA status of ROV technicians, the Halle decision once again reaffirms the Fifth Circuit’s narrow-construction, fact-intensive approach to seaman status under the FLSA. The decision also raises (perhaps) another apparently res nova question as to whether ROV technicians – who are non-seaman under FLSA – may nonetheless qualify as Jones Act seaman for purposes of tort liability. See, e.g., Pitre v. Custom Fab of Louisiana, LLC, 2013 WL 4499029 (E.D. La. Aug. 20, 2013) (holding that non-ROV technician welder, assigned to work on ROV system aboard a semi-submersible rig, might be a Jones Act seaman). Likewise, the decision perhaps raises questions as to whether any of the many other types of non-traditional seaman offshore personnel may (or may not) be deemed FLSA seaman in the Fifth Circuit. See, e.g., Martin v. Bedell, 955 F.2d 1029, 1035 (5th Cir.1992) cited in Coffin, 771 F.3d at 283 (“In Martin, the Secretary of Labor brought suit to compel a company to pay overtime to cooks who worked aboard boats that provided offshore maintenance to oil companies. We recognized that a vessel-based cook is usually a seaman because he usually cooks for seamen. 955 F.2d at 1036. We remanded that case for further factual findings, however, so that the district court could determine whether the cooks spent a significant amount of time preparing food for nonseamen.”) (dismissed without a decision on remand). It also bears noting that the Halle court’s heavy reliance on Walling is somewhat suspect, as that more than seventy-year-old decision obviously did not and could not have accounted for the myriad, technologically advanced specialized offshore support vessels that have entered the offshore fleet in that interim.
All of this leaves offshore employers in the problematic position of being practically (arguably) unable to prospectively categorize their offshore employees for FLSA purposes, given the minutely detailed analysis of every aspect of an employee’s potential that a court will bring to bear in an FLSA seaman analysis (which, again, does not even consider the separate question of whether that same work would qualify as Jones Act seaman’s work). Given the uniquely interstitial status of many specialized offshore workers in the modern offshore fleet, and the high upside for prevailing FLSA plaintiffs (1.5 times the “base rate” for every hour worked over 40, plus an equal amount as liquidated damages, plus attorneys’ fees and costs) litigation under the FLSA’s seaman exemption is likely to continue in the wake of Coffin and Halle.
