Because of the coronavirus, the cruise line industry is essentially shut down, with thousands of employees often held hostage aboard ships that have no paying customers, while the cruise lines try to figure out how to get the employees back to their home countries. What happens if a cruise line stops paying or fires an employee who protests unsafe or unhealthy work conditions, including coronavirus-related safety issues?
There is a federal law, the Seaman’s Protection Act, 46 U.S.C. § 2114, which protects maritime workers, including cruise ship employees, from retaliation if they blow the whistle on their employer. Protected conduct includes (1) when the employee “refused to perform duties … 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,” or (2) “the seaman notified, or attempted to notify, the vessel owner or the Secretary [of Labor] of a work-related personal injury or work-related illness of a seaman” or (3) “the seaman furnished information to the Secretary [of Labor], 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…,” among other categories.
However, in order to be protected, cruise line employees must work “on board a U.S.-flag vessel or any other vessel owned by a citizen of the United States.” 29 C.F.R. § 1986.101(m). Under the current regulations (last amended in 2016), a “citizen of the United States” includes both corporations incorporated in the U.S., and foreign corporations whose “whose principal place of business or base of operations is in a State.” 29 C.F.R. § 1986.101(d). This is an important limitation, because nearly all cruise ship lines (other than the river boat cruises on U.S. rivers and those ships that only sail to Hawaii) are incorporated in foreign countries, such as Panama or Liberia.
The Department of Labor’s Administrative Review Board issued a decision this week holding that under the pre-2016 version of the regulations, an employee of Carnival Cruise Lines was not covered by this law, because under the former regulations applicable at the time he was terminated in 2014, only a corporation that was incorporated in this country was a “citizen” under this law. Gummala v. Carnival Corporation (ARB Apr. 20, 2020). The Administrative Review Board noted that Carnival Cruise Lines did have its principal place of business in Miami, so that if this employee had been fired after 2016, after the regulation was expanded, then he would be protected against retaliation.
Thus, cruise line employees who can show that their employer is either incorporated in the U.S., or has a principal place of business or base of operations somewhere in this country, can be protected under this whistleblower statute. They would have to file a whistleblower complaint with the Department of Labor within 180 days. Since the majority of cruise lines are incorporated in foreign countries, employees would need to show that their employer had a principal place of business or base of operations somewhere in the United States in order to be protected against retaliation for reporting unsafe or unhealthy work conditions on cruise ships.
–Alan R. Kabat