The Seaman’s Protection Act, 46 U.S.C.A. § 2114 (“SPA”) was originally passed in 1984 and was intended to increase safety for maritime workers by prohibiting employers from retaliating against employees that report unsafe work conditions to a government regulatory body. However, before the SPA was bolstered by clarifying administrative decisions, it seemed there were a dearth of maritime whistle blowers coming forward to report unsafe work conditions.
The conjecture that many have drawn is that this lack of whistle blowers was because most employers had a company policy in place to prevent employees from directly contacting the USCG, OSHA or other regulatory bodies. This concern was highlighted but not addressed in subsequent administrative cases involving the SPA.
In Loftus v. Horizon Lines, Inc., ARB No. 16-082, John Loftus (Loftus) was employed by Horizon Lines, Inc. (Horizon) and was serving as a Captain aboard its ships. In 2011, Loftus lodged a formal complaint with the United States Coast Guard regarding unsafe work conditions on one of the company’s ships. Loftus informed Horizon of the reports to the USCG. Loftus was subsequently demoted to 1st Mate under what the Administrative Review Board (ARB) of the Department of Labor (DOL) found to be pre-textual reasons.
Loftus brought a complaint to the DOL alleging that his demotion was actually due to his whistle blowing activities regarding the Horizon Trader. The case came before the ARB and in litigating the case, expert testimony was given that it is “standard business practice” for employers to prohibit any direct contact by employees with government regulatory bodies. Unfortunately, the legality of such a policy was not before the ARB as a live issue and was not addressed at the time. However, recent developments have changed this “standard business practice.”
Following Loftus, OSHA issued a Whistle Blower Directive that has made such “standard business practices” and official company policies preventing an employee from directly contacting a regulatory body, to be impermissible. OSHA demonstrated this Directive recently in a 2023 Merit Finding against Maersk Line Limited in which this type of policy was found to violate the SPA. OSHA ordered Maersk to revoke the policy and post notices in its work spaces announcing its revocation.
It is important for today’s maritime workers to know that they have the right to report unsafe work conditions to government regulatory bodies without the fear of reprisal from their employer. Hopefully, this Merit Finding by OSHA increases safety and prevents further mishaps and injuries for maritime workers. Unfortunately, even with this new policy in place, not every accident can be avoided. Even more tragically, sometimes accidents occur when they could have been avoided if proper and reasonable care was taken by those responsible for safe working conditions. These accidents can leave employees with lasting impairment that prevents them from ever working again. Of course, even worse, they can be deadly.
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