The manager of a marina along the Mississippi River in Iowa decided to remove a torn canopy by using a mini-excavator. He drove the excavator down two boat ramps and onto a barge. Before he reached the barge, however, the boat ramp slipped. The excavator tumbled into the river and the manager drowned. His widow filed for death benefits with the Iowa Workers’ Compensation Commission, and the defendant argued that Iowa lacked subject matter jurisdiction because the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) applied. Ultimately, the Court of Appeals of Iowa disagreed with defendant’s position. A worker covered under the LHWCA is not covered by Iowa’s workers’ compensation laws. The defendant contended that the decedent was a longshoreman because his injury occurred on navigable waters. The widow did not dispute that the injury occurred on navigable waters. Instead, she focusing on the LHWCA’s definition of “employee.” Pursuant to 33 U.S.C. § 902(3), an “employee” does not include “individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance).” Here, the decedent’s overall job duties, which included landscaping, painting and handyman tasks, made him the “paradigmatic routine maintenance worker.” As such, he was not an “employee” under the LHWCA and Iowa’s Workers’ Compensation Act applied.
Yesterday, the Supreme Court of the United States issued its decision in Chamber of Commerce v. Whiting. At issue was an Arizona statute that imposed significant sanctions, including suspension or revocation of a business license, on an employer who knowingly or intentionally employed unauthorized aliens. Although the Court’s analysis is limited to the Arizona statute, the Court nonetheless recognized that several States have imposed additional employment-related laws.
The Court upheld the Arizona licensing law, finding that it was not preempted by the Immigration Reform and Control Act (“IRCA”). Although the IRCA prohibits a State from imposing a civil or criminal sanction, the State is still able to penalize those employers who knowingly or intentionally employ unauthorized aliens by imposing sanctions via licensing laws. Congress carved out the licensing exception for a reason, and a State may use “appropriate tools” to exercise the authority.
The Whiting decision could very well have an effect on workers’ compensation practice. Workers’ compensation benefits for an illegal alien is a topic of serious debate. Some states allow compensation while others do not. Compare Dynasty Sample Co. v. Beltran, 479 S.E.2d 773 (Ga. 1996) (allowing benefits) with Felix v. Wyoming Workers’ Safety and Compensation Div., 986 P.2d 161 (Wyo. 1999); see also Marboah v. Ackerman, 877 A.2d 1052 (D.C. 2005). Additional concerns arise when a claimant reaches permanency and an employer must demonstrate suitable alternative employment. For instance, employers cannot continue to employ the employee or offer modified employment without violating the IRCA, which has civil and criminal penalties. Under the state law addressed in Whiting, an employer could face suspension or revocation of its business license if it intentionally or knowingly employs an undocumented worker. Considering the employer’s burden of demonstrating suitable alternative employment, it appears like the employer is stuck between a rock (federal law) and a hard place (state law). By the time the vocational expert prepares the rehabilitation report and labor market survey, the employer will be aware of the employee’s undocumented status. No guidance from the Court is expected for the foreseeable future following the Court’s recent refusal to hear an undocumented alien workers’ compensation case. Rodriguez v. Integrity Contracting, 09-1537 (La. App. 3 Cir. 5/5/10), 38 So.3d 511, cert. denied, Vaughan Roofing & Sheet Metal, LLC v. Rodriguez, 131 S.Ct. 1572 (2011).
Plaintiff brought suit alleging general maritime law and admiralty jurisdiction, along with a prayer for a trial by jury. Defendant argued that Plaintiff was not a Jones Act Seaman, and that therefore the court did not have jurisdiction under general maritime law. In a subsequent amendment to his complaint, Plaintiff made an election under Rule 9(h) of the Federal Rules of Civil Procedure, and added additional Defendants. Under Rule 9(h), if a claim is within the admiralty or maritime jurisdiction of the court and also within the court’s subject matter jurisdiction on some other ground, the pleading may designate the claim as either an admiralty or maritime claim. The effect of this designation will either allow or prohibit a trial by jury.
The newly added Defendants all claimed jurisdiction was proper only by diversity, and two of the added Defendants prayed for a jury trial. Subsequently, Plaintiff moved to strike his jury demand, which motion was opposed by all of the Defendants. The Defendants argued that Plaintiff lost his seaman status when he was re-assigned to a land-based rig; in turn the Defendants argued that because maritime jurisdiction did not attach, Plaintiff could not elect under Rule 9(h).
The court granted Plaintiff’s motion to strike, and held that admiralty jurisdiction may exist even if the injury occurred on land. The court further held that a Plaintiff is the “master of his complaint,” and Plaintiff’s general assertion of an admiralty or maritime claim was sufficient to make a Rule 9(h) election. Once the election is made, no right to a jury trial exists for the Defendant even though diversity of jurisdiction exists. A general election, plus a demand for trial by jury, preserved Plaintiff’s right to determine the format of the litigation, whether by jury or bench. The court noted that here there was no prejudice to the added Defendants who requested a jury trial, since “the pleading which named them also made a very explicit 9(h) designation.” Id. at *5. The court hinted that should such an election occur after parties who requested a jury trial were added, the right of the Plaintiff to control the format of the litigation might cease due to prejudicial effect.
Billiot v. Key Energy Services, No. 09-01023, 2011 WL 1628000 (W.D. La., April 27, 2011).
An article about the state of the Benefits Review Board has been published at LexisNexis’ Workers’ Compensation Law Community page. Karen Koenig, Associate General Counel of the Longshore Benefits Review Board, wrote the article, which is entitled Update from the Benefits Review Board. Among other things, it discusses the applicable law for DBA claims, as well as the Supreme Court’s grant of certiorari in Pacific Operators Offshore, LLP v. Valladolid. It is certainly an article worth reading.