California LHWCA Lawyer: What Are Wages Under The Longshore Act?
Wages are used under the LHWCA (ie., Longshore Act) in order to determine an employee's average weekly wage and compensation rate. Simply stated, the higher a workers average weekly wage under the Longshore Act; the higher their compensation rate will be. With a higher compensation rate, the injured worker will receive more money for their LHWCA case. Thus, one of the primary goals of an injured worker (i.e., "Claimant") in a Longshore Act case is proving the highest average weekly wage they can. This is done with wage evidence.
What are and are not "wages" is often the subject of intense dispute in a Longshore Act and/or Defense Base Act case. Including or not including any particular item in an injured workers wages under the LHWCA may result in ten of thousands, if not hundreds of thousands of dollars in benefits. It can be a really, really big deal to a seriously injured worker and their family.
Under the LHWCA a "wage" is a money rate received as compensation from an employer, for services rendered by the employee. The money paid to an employee must be traceable to an employer.
Included in wages are gratuities received in the course of employment from others than the employer. In other words, tips or payments from others.
The following have been included as wages: overseas additives or overseas allowances, including foreign housing allowance and cost of living adjustment, completion awards, vacation or holiday pay (calculated the year it is received rather than the year it is earned). However, a claimant is not entitled to have both per diem and the value of room and board included in his wage calculation.
Also included are: the pay for overtime hours (when the hours are a regular and normal part of claimant's employment), container royalty payments (compensation paid by shipping companies in lieu of work lost by longshoremen due to containerization), guaranteed annual income payments (guaranteed payment of up to a guaranteed number of hours of work each year, i.e., an individual only works 1500 hours because of the bad economy, but is guaranteed 2000 hours and accordingly receives pay for 2000 hours of work), earnings from a second part-time job, and payment in kind (automobile parts), rather than in cash.
Wages do not include fringe benefits, including (but not limited to) employer payments for or contributions to a retirement, pension, health and welfare, life insurance, training, social security or other employee or dependent benefit plan for the employee's or dependent's benefit, or any other employee's dependent entitlement. The following have been characterized as or found similar to a "fringe benefit" and have not been included as earnings in the calculation of wages: employer contributions to a union trust fund, rest and relaxation payments, payment of Social Security insurance, excess income tax reimbursements, and payment for storage.
Disclaimer
This article not legal advice. Any resemblance to actual cases and/or events is not intentional. This LHWCA wage analysis is simplistic in order to achieve clarity. Each LHWCA and/or Defense Base Act case is different and has separate difficulties and/or challenges. If you are a seriously injured Longshore Act worker or Defense Base Act worker you are advised to hire a seasoned LHWCA lawyer.