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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.
About the Author:
Bill Turley is a California Longshore Act Lawyer and
California Defense Base Act Lawyer. He was elected
President of Consumer Attorneys of San Diego. The Turley
Law Firm has the most comprehensive Longshore Act website in
California. ==>
http://www.turleylawfirm.com/practice_areas/longshore-and-harbor-workers-compens\
ation-act-lhwca-longshore-act.cfm
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