THE SEAMAN’S PROTECTION ACT
There are currently 25 federal statutes protecting employees engaged in protected workplace activity from employer retaliatory acts. These are commonly known as “Whistleblower Laws”, https://www.osha.gov/OshDoc/data_General_Facts/whistleblower_rights.pdf
Among them is the Seaman’s Protection Act, (SPA). The SPA was enacted in 1984 as part of the Coast Guard Authorization Act of 1984. The SPA was enacted in response to a decision of the Fifth Circuit Federal Court of Appeals, Donovan v. Texaco, 720 F.2d 825 (5th Cir. 1983). In this case the Court held that the whistleblower provision of the Occupational Safety and Health Act (OSHA) did not cover seamen. The facts of this case were the following. The Plaintiff seaman was employed by Texaco Inc in June 1979 as First Assistant on the SS Texaco Connecticut. While on board he reported a number of machinery deficiencies to the Chief Engineer which apparently were ignored. He next complained to the Coast Guard. This resulted Texaco removing him from the vessel pending an investigation into his calling the Coast Guard. On August 3, 1979, he received a notice of demotion to second Assistant Engineer for one year. He was requested to report to the Marine Department Office in Port Arthur on August 27, 1979, to discuss demotion and pay matters. He refused to attend unless accompanied by his attorney or other representative. Texaco next discharged him for refusal to accept an assignment of Second Assistant Engineer and refusal to report to the Marine Department Office.
The Plaintiff seaman filed a complaint with the Secretary of Labor, because no laws existed protecting seaman from retaliatory type actions and because OSHA regulations appeared to be sufficiently broad to cover complaints registered with other Federal Agencies.
Following its own investigation, The Secretary of Labor filed a complaint in Federal Court. The court ruled OSHA did not have jurisdiction because the Coast Guard had pre-empted the application of OSHA regulations. An appeal to the Firth Circuit Court was to no avail, the decision was upheld.
Seaman’s Protective Act 1984
As a result of this decision, Congress intervened by including provisions within the Coast Guard Authorization Act of 1984 for the protection of Seamen.
As enacted, the SPA protected seamen from retaliation for reporting violations of law and regulations under Title 46 Subchapter II which pertain to vessels and seamen.
The Act consisted of two paragraphs as set forth below.
Protection of Seamen
Sec. 13. (a) Chapter 21 of title 46, United States Code, is amended by adding at the end the following:
“Section 2114. “46 USC § 2114” Protection of seamen against discrimination
“(a) An owner, charterer, managing operator, agent, master, or individual in charge of a vessel may not discharge or in any manner discriminate against a seaman because the seaman in good faith has reported or is about to report to the Coast Guard that the seaman believes that a violation of this subtitle, or a regulation issued under this subtitle, has occurred.
“(b) A seaman discharged or otherwise discriminated against in violation of this section may bring an action in an appropriate district court of the United States. In that action, the court may order any appropriate relief, including –
“(1) restraining violations of this section; and
“(2) reinstatement to the seaman’s former position with back pay.”.
Amendment of 2002
In 2002, Congress amended the SPA as part of the Maritime Transportation Security Act of 2002. The protections and remedies permitted by the Act were altered.
First, Congress removed the specific list of actors set forth in paragraph “a” who were prohibited from retaliating against seamen and replaced that text with “A person.”
Second, Congress expanded the existing description of protected activity to include reports to “the Coast Guard or other appropriate Federal agency or department,” rather than only to the Coast Guard, and violations “of a maritime safety law or regulation prescribed under that law or regulation,” rather than only of Subtitle II and its accompanying regulations.
Third, Congress added a second type of protected activity; a seaman was granted protection if he “refused to perform duties ordered by the employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public”
Amendment of 2010
On October 15, 2010 Congress amended the SPA a second time. Five additional protected activities, “C” to “G” were added. In addition, Congress eliminated the seaman’s private right of action replacing it with an administrative procedural filing. Previously under a private right of action an aggrieved seaman was allowed the right to sue the employer directly in court. Under the procedural filings, found in § 2114 (b) the seaman was now required to follow the same administrative procedures allowed to employees in the commercial motor transportation industry under the Surface Transportation Assistance Act (STA Act) . Congress had passed the STA Act in 1983 to “protect employees from being discharged in retaliation for refusing to operate a motor vehicle that does not comply with applicable state and federal safety regulations or for filing complaints alleging such noncompliance.”
The current form of the SPA is as follows:
46 U.S.C.A. § 2114
§ 2114. Protection of Seamen Against Discrimination
(a)(1) A person may not discharge or in any manner discriminate against a seaman because–
(A) the seaman in good faith has reported or is about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believes that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred;
(B) the seaman has refused to perform duties ordered by the seaman’s employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public;
(C) the seaman testified in a proceeding brought to enforce a maritime safety law or regulation prescribed under that law;
(D) the seaman notified, or attempted to notify, the vessel owner or the Secretary of a work-related personal injury or work-related illness of a seaman;
(E) the seaman cooperated with a safety investigation by the Secretary or the National Transportation Safety Board;
(F) the seaman furnished information to the Secretary, the National Transportation Safety Board, or any other public official as to the facts relating to any marine casualty resulting in injury or death to an individual or damage to property occurring in connection with vessel transportation; or
(G) the seaman accurately reported hours of duty under this part.
(2) The circumstances causing a seaman’s apprehension of serious injury under paragraph (1)(B) must be of such a nature that a reasonable person, under similar circumstances, would conclude that there is a real danger of an injury or serious impairment of health resulting from the performance of duties as ordered by the seaman’s employer.
(3) To qualify for protection against the seaman’s employer under paragraph (1)(B), the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.
(b) A seaman alleging discharge or discrimination in violation of subsection (a) of this section, or another person at the seaman’s request, may file a complaint with respect to such allegation in the same manner as a complaint may be filed under subsection (b) of section 31105 of title 49. Such complaint shall be subject to the procedures, requirements, and rights described in that section, including with respect to the right to file an objection, the right of a person to file for a petition for review under subsection (c) of that section, and the requirement to bring a civil action under subsection (d) of that section.
Procedures under the SPA for Filing the Administrative Complaint.
46 U.S.C.A. §2114 (b) sets forth the procedures. The salient provisions are as follows;
-time to file is 180 days after the incident;
-the complaint can be filed with the Secretary of Labor orally by calling the local OSHA office or by sending a written complaint to the nearest OSHA regional or area office. Written complaints may be filed by fax, electronic communication or hand delivery during business hours. The date of the postmark, facsimile, electronic communication, telephone call etc. is considered as the filing date. OSHA area office contact information is available at 1-800-321 OSHA or on line at http://wwwosha.gov/html/RAmap.html
– Not later than 60 days following receipt of the Complaint, OSHA will conduct an investigation and decide whether it is reasonable to believe the complaint has merit. OSHA will then notify, in writing, the complainant and the person alleged to have committed the violation of the findings. If OSHA reasonably a violation occurred, the written notification will include in the decision, findings and a preliminary order for the relief.
OSHA is authorized by law to provide is the following:
1. requiring affirmative action be taken to abate the violation;
2. reinstatement of the complainant to the former position with the same pay and terms and privileges of employment; and
3. payment of compensatory damages, including backpay with interest and compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.
4. punitive damages up to $250,000
5. reasonable attorney fees incurred in bringing the complaint.
Post Decision Review
Once written notice of the OSHA decision has been provided, either party may file objections and request a Hearing on the record. However either the filing of objections nor request for a Hearing will not stay an order of reinstatement in the preliminary decision and order.
If a Hearing is held, OSHA will issue a final order.
Appeals into Court
Although the initial complaint must be commenced by filing an administrative filing with OSHA, there are two ways the matter can proceed into a federal court.
1) If OSHA has not issued a “final decision” within 210 after filing of the complaint and the delay is not due to bad faith on the part of the employee, the employee has the right to file an original action in a federal district court having jurisdiction over the action, with right of either party to a jury trial.
2) Either party who is adversely affected by a Final Decision and Order, has the right to appeal within 60 days directly to the Federal Court of Appeals in with the violation occurred or in which the person committing the violation resided on the date of the violation.