What Is the Seaman’s Protection Act, 46 U.S.C. §2114 (SPA)?
The Seaman’s Protection Act, 46 U.S.C. §2114 (SPA) is a federal law that has been protecting the interests of United States mariners since 1984.
Congress passed the SPA in response to whistleblower case law that developed in appellate courts. It held that the whistleblower provision of the Occupational Safety and Health Act (OSH Act) did not cover seamen who had been unfairly demoted and discharged from shipboard positions after reporting possible safety violations of the authorities.
What Does the Seaman’s Protection Act Do?
In sum, the SPA prohibits employers from taking “adverse action” against “seamen” engaging in “protected activities” pertaining to compliance with maritime safety laws and regulations. Notably, employers cannot seek waiver of a seaman’s SPA rights by contract or general release. The Act is enforced by the Occupational Safety and Health Administration (OSHA), which investigates complaints of violation filed with the agency.
SPA Investigation Procedures
The procedure followed during administrative investigation of SPA Complaints can be found in 29 C.F.R. Part 1986. The process is initiated when a seaman files a Complaint with OSHA. The Complaints can be oral or written and in almost any form or language. However, SPA complaints must be filed with OSHA within 180 days of the adverse action alleged by the seaman. Otherwise, the SPA claim may be barred by statute of limitations.
Following a seaman’s Complaint, OSHA will evaluate the case for sufficient prima facie allegation of:
- The seaman engaged in a protected activity;
- The respondent knew or suspected that the seaman engaged in protected activity;
- The seaman suffered an adverse action; and
- The circumstances were sufficient to raise an inference that the protected activity was a contributing factor in the adverse action.
If the investigation moves forward, OSHA requests a position statement from the respondent. The OSHA investigator may then collect evidence and interview witnesses. If OSHA finds reasonable cause to believe that unlawful retaliation occurred, it will generate findings of fact and a preliminary order listing the seaman’s relief.
The seaman and the respondent are permitted to settle their disputes at any time during the OSHA proceedings. However, OSHA must approve the settlement agreement.
Once OSHA issues its findings, either party to the dispute can file an objection within 30 days and request a hearing before an administrative law judge (ALJ). The parties provide evidence in the ALJ proceeding, which often includes evidence collected by the OSHA investigator. The ALJ can then resolve the matter at a hearing. Any of the parties or OSHA can appeal the ALJ’s decision to the Department of Labor’s Administrative Review Board (ARB). The ARB decision or the ALJ decision can also be reviewed by a U.S. Court of Appeals.
Can an SPA case be filed in court?
While the initial SPA Complaint cannot be filed in federal court before the OSHA investigation, a seaman can bring a de novo action in a district court if OSHA has not issued a final decision within 210 days of the seaman’s Complaint.
What Is a “Contributing Factor”?
Notably, the SPA is a “contributing factor” statute—meaning that OSHA will find that retaliation occurred so long as there is reasonable cause to believe that the seaman’s protected activity was a factor that in any way affects the adverse action. Evidence that protected activity contributed to an adverse action is broad and can include:
- Close timing between the protected activity and the adverse action;
- Hostility towards the protected activity;
- Disparate treatment compared to other seamen;
- Changes in treatment before and after the Complaint; and
- Indicators that a respondent’s explanation is pretext.
Who Is a “Seaman” Under the SPA?
OSHA guidance defines “seaman” for SPA purposes as any individual engaged or employed in any capacity aboard a covered vessel who is not a member of the armed forces. The term includes individual contractors performing the aforementioned work. A “covered vessel” is U.S.-flagged or otherwise owned by a U.S. citizen.
SPA “Protected Activities”
The “protected activities” under the SPA are enumerated as follows:
- Provided (or was about to provide) information relating to a violation of maritime safety laws or regulations to the United States Coast Guard or other appropriate federal agency or department;
- Testified in a proceeding brought to enforce a maritime safety law or regulation (this includes internal complaints);
- Refused to perform duties because of a reasonable apprehension of serious injury to the seaman, other seamen, or the public, if the seaman has first requested that the employer correct the dangerous condition;
- Notified or attempted to notify the vessel owner or the United States Coast Guard of a work-related injury or illness of a seaman;
- Cooperated with a safety investigation by the United State Coast Guard or the National Transportation Safety Board;
- Furnished information to any public official relating to any marine casualty where there is death, injury, or damage to property occurring in connection with vessel transportation; or
- Accurately reported hours of duty under Part A of Subtitle II of Title 46 of the United States Code.
SPA “Adverse Actions”
There is no specific list of “adverse actions” under the SPA. OSHA considers any action that could dissuade a reasonable seaman from engaging in SPA protected activities to be adverse. Some examples include:
- Firing or laying off;
- Denying overtime or promotion;
- Denying benefits;
- Failure to hire or rehire;
- Making threats, including threats against the seaman’s credentials;
- Reassignment affecting promotion or imposing more arduous duty;
- Reducing pay or hours;
- Shunning or isolation; and
- Constructive discharge.
What Relief Is Available for Violation of the SPA?
If OSHA finds reasonable cause that unlawful retaliation occurred, it will issue a preliminary order, including appropriate relief. That relief may include job reinstatement, back pay, compensatory damages, neutral reference, case costs, attorney fees, and even punitive damages not exceeding $250,000.
Workplace retaliation aboard vessels remains an issue in the maritime industry. However, OSHA protection under the SPA may be broader than you think. Have a look at the list of “protected activities” and consider whether you have faced any type of “adverse action” as a result. Then, call an experienced maritime lawyer who can help you assess whether you may be entitled to relief under the SPA.
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