Jottings By An Employer's Lawyer

Wednesday, October 06, 2004

Maritime Crew of Floating Casino Are "Seamen" For Purpose of FLSA Exemption

Although much attention lately has been on the white collar exemptions to the FLSA, sprinkled throughout the act are other exemptions, including one for "seamen." In a case brought by 21 employees of a floating casino, which spent 90% of its time docked, are the workers exempt? It depends on what they do. The court would start with a presumption that if they are entitled to the special benefits that seamen get such as the right to "cure and maintenance" or coverage under the liberal Jones Act, then they are seaman for purposes of the FLSA exemption. Judge Posner in his typical way describes the effect of the presumption as having "the incidental but not trivial advantage of making law a little simpler." Here, the presumption was not rebutted, although the court finds that those whose function was clearly related to the casino rather than a ship, such as a croupier should be able to overcome the presumption. Harkins v. Riverboat Services, Inc. (7th Cir. 10/06/04) [pdf].

Of perhaps even more interest for other cases was the court's strict interpretation of the requirement of a consent to participate in the case which had been styled as a collective action. Although actually named as parties and deposed, 18 of 21 putative plaintiffs claims were dismissed for failure to file a written consent. Arguing to no avail that it was not needed since they were named, the court refused to agree, finding no basis for not interpreting strictly the literal requirement of the statute. If the case had been called a joint action rather than the statutory collective action, where recovery was sought for those "similarly situated" the outcome would have been different.

14 also sued for retaliatory discharge, a claim that was allowed to proceed without the consent. The jury found for the employer, and the court never specifically addressed the merits of that claim in the decision affirming the lower court. Presumably it is wrapped up in Judge Posner's final words:
The plaintiffs urge a number of errors in trial rulings. None is substantial, and there is no need to burden the opinion with a discussion of them.
Enough said.


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