Question: An employee works on a boat (manual labor so does not meet job duties tests) that goes out for days at a time. He essentially “lives” on the boat while out at sea. How do we determine his “hours worked” in order to be compliant with the FLSA?
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Answer: Thank you for your inquiry regarding an employee who works on a boat.
It sounds as though this employee may qualify for an exemption as a seaman. The Fair Labor Standards Act (FLSA) provides an exemption from the law’s overtime requirements (but not minimum wage) for “an employee employed as a seaman.” See 29 U.S.C. sec. 213(b)(6). If the employee is considered an exempt seaman, then you generally only have to pay him for hours worked when he is actually on duty.
According to the FLSA regulations, an employee will ordinarily be regarded as “employed as a seaman” if he performs, as master or subject to the authority, direction, and control of the master aboard a vessel, service which is rendered primarily as an aid in the operation of such vessel as a means of transportation, provided he performs no substantial amount of work of a different character. This is true with respect to vessels navigating inland waters as well as ocean-going and coastal vessels. See 29 C.F.R. sec. 783.31.
The regulations further indicate that the term “seaman” includes members of the crew such as sailors, engineers, radio operators, firemen, pursers, surgeons, cooks, and stewards if, as is the usual case, their service is of the type described in § 783.31. In some cases it may not be of that type, in which event the special provisions relating to seamen will not be applicable.
However, an employee employed as a seaman does not lose his status as such simply because, as an incident to such employment, he performs some work not connected with operation of the vessel as a means of transportation, such as assisting in the loading or unloading of freight at the beginning or end of a voyage, if the amount of such work is not substantial. See 29 C.F.R. sec. 783.32.
The FLSA regulations indicate you only have to pay a seaman for hours worked when he is actually on duty, including periods aboard ship when the employee was on watch or was, at the direction of a superior officer, performing work or standing by, but not including off-duty periods which are provided pursuant to the employment agreement. See 29 C.F.R. sec. 783.46.
Off-duty periods include not only such periods as shore leave but also generally those hours spent by a seaman on the vessel outside his watch or normal or regular working hours and his standby periods during which hours he is not required to perform and does not perform work of any kind but is free to utilize his time for his own purpose.
The fact that during such off-duty periods the employee is subject to call in case of emergency situations affecting the safety and welfare of the vessel upon which he is employed, or of its passengers, crew, or cargo or for participation in life boat or fire drills will not make such off-duty periods, excluded by employment agreement applicable to the employee, “hours worked.” Responding to such calls, however, as well as the performance of work in response to the calls, constitute compensable work time. See 29 C.F.R. sec. 783.47.
Because of the unique issues related to seaman under the FLSA, you should consult with an attorney who has an expertise in these matters.