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Contents of Main Volume | Contents of Supplement
DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
PDF Version: Volume I (Topics 1-21) | Volume II (Topics 22-90)
Description |
Topic |
Discrimination Against Employees Who Bring Proceedings |
48a |
TOPIC 48a Applicability of the Civil Rights Tax Relief provision of the American Jobs Creation Act to cases arising under Section 48 of the Longshore Act
On October 22, 2004, the President signed the American Jobs Creation Act of
2004. Section 703 of this Act establishes a deduction from gross income
for attorneys' fees and court costs incurred by, or on behalf of, individuals
who prevail in employment discrimination and other cases. This eliminates
a burdensome tax effect on plaintiffs in employment discrimination cases which
was often a barrier to overcome in settlement negotiations. Under prior
law, the IRS required such plaintiffs to pay taxes on the attorneys’ fees
recovered in litigation or settlements, even though the money went straight to
the attorney who also paid taxes on the amount as income.
The provision covers a number of laws administered by the Department of Labor,
and may include discrimination claims filed under Section 48(a) of the LHWCA
adjudicated by this office. The text of section 703 is posted on
the OALJ web site at http://www.oalj.dol.gov/PUBLIC/LONGSHORE/REFERENCES/STATUTES/LHWCA.HTM#948A
.
The longshore practitioner should specifically note Sub-Sections 703(e)(17) and
(18) of this legislation. Sub-part (17) references “any
provision of Federal law (popularly known as whistleblower protection
provisions) and specifically notes “reprisal against an employee for asserting
rights or taking other actions permitted under Federal law.” Sub-part
(18) includes in tax relief coverage the following:
“(18) Any provision of Federal,
State, or local law, or common law claims permitted under Federal, State, or
local law—
“ii) regulating any aspect of the employment relationship, including claims for
wages, compensation, or benefits, or prohibiting the discharge of an employee,
the discrimination against an employee, or any other form of retaliation or
reprisal against an employee for asserting rights or taking other actions
permitted by law.”
Section 48(a) of the LHWCA (Amended 1984), formerly Section 49, addresses
discrimination against employees who bring proceedings for filing compensation
claims or testifying in longshore proceedings. The employer alone
and not his/her carrier is liable for penalties and payments under Section
48(a). The LHWCA specifically states, “Any provision in an
insurance policy undertaking to relieve the employer from the liability for
such penalties and payments shall be void.” A claimant who succeeds in a
Section 48(a) discrimination claim is entitled to attorney fees for that
claim. While Section 48(a) has never officially been referred to as a
whistleblower provision, it certainly falls within general whistleblower
criteria as well as the criteria listed in Sub-sections (17) and (18) of the
Civil Rights Tax Relief legislation.
Topic 48(a) Discrimination Against
Employees Who Bring Proceedings
[Ed. Note: The following case is
included for informational value only.]
Carter v. Tennant Co., ___ F.3d ___ (No. 03-2791)(7th
Cir. September 13, 2004).
Here the plaintiff’s suit for wrongful discharge in retaliation for making a
workers’ compensation claim was found to have been properly dismissed by the
district court since the plaintiff was found to have given dishonest answers to
a health history questionnaire. He had not told the present employer
about his previous injury or on-going medical care and benefits. The
Plaintiff had also argued that his Privacy Act rights were violated and that,
therefore, his discharge based on incorrect answers should be voided.
However, the circuit court noted that the employer had asked if he had “ever
had any occupational injuries, accidents, or illnesses;” “lost time from work
for a work-related injury or illness;” or saw “a medical doctor for any
work-related injury/illness.” The court found that such questions were
not in violation of the statute which specifically barred employers from
inquiring “whether that prospective employee has ever filed a claim for
benefits under the state workers’ compensation act or Workers’ Occupational
Diseases Act or received benefits under these Acts.”
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