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U.S. Department of Labor
Employment Standards Administration
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Printer-Friendly Version
Department of
Labor OWCP
Defense Base Act Workshop
Defense Base Act History and Purpose of The Act
- Passed in 1942 amended later
- To cover overseas civilian workers
- On government contracts
- Whether US or foreign nationals
Milestones in the History of the Act
- 1941 Act passed to protect workers on lend-lease military bases.
- 12/2/1942 War Hazards Act passed
- DBA amended to cover employees outside the US
- Payment for injuries due to war risk
- Reimbursement to carriers
- Benefits for captured contractor employees
Milestones in the History of the Act
- 1953 World War II references altered to national defense.
- 1958 Includes welfare or morale organizations
- Defines "public work" to include fixed and moveable projects
and
- Service projects
- Eliminates exclusion of non-citizens
- Mutual Security Act extends DBA cover to employees working abroad
under contracts financed by the MSA
Milestones in the History of the Act
- 1958 Clarifies that service contracts, even those which do not
directly provide for "construction, alteration, removal or repair", are
included in the definition of public work.
Warning
- Our office can only offer general information about the
administration of the Act, and our responses to questions from the public
should not be construed as legal opinion or advice.
- "It is not our choice how the courts will decide".
The Six Gates to Cover
- Any defense base acquired from any foreign government
- Any defense base acquired from any foreign government.
- Public work in any Territory or possession under a contract with the
US
- Public work outside the US not covered under (3)
- Contract outside the US approved and financed by the US.
- Welfare or similar services outside the US for troops authorized by
DOD.
The Gates
Employment at any defense base acquired by the United
States from any foreign government after January 1, 1940
The Gates
Lands occupied or used by the US for military purposes
outside the continental US
The Gates
Public work in any Territory or possession under a contract
with the US
The Gates
Public work outside the US not covered under (3)
The Gates
Contract outside the US approved and financed by the
US.
The Gates
Welfare or similar services outside the US for troops
authorized by DOD.
The Gates
Public Work has been judicially broken down as:
- Related to fixed improvements , or any projects fixed or not for
public use to the US or its allies involving construction, alteration, removal
or repair
- Projects or operations under service contracts
- In connection with national defense & war activities
- Specific category projects
- Dredging, harbor improvements, dams, roadways and housing
- Ancillary and Preparatory work for these.
The Gates
Work under 1 above must be
- Construction or alteration and
- For the public use of the US or its allies
Work under 2 and 3 need not involve construction but:
- Must be related to national defense, war activities or a public use
of the US.
- Grants
- There is a difference between a contract and a grant
- There is a
difference between cover based on location and on employment
- Grants for work on locations not used for military purposes are not
covered.
Exceptions
- Employed exclusively in furnishing materials or supplies under his
contract.
- Exclusively employed.
Cover
- Cover under the contract attaches when the employee becomes an
employee
- So compensation arises from employment status without regard to
where the injury occurred.
- An injury in the US may therefore be compensible.
Cover
- Cover applies to employees
- There is no exclusion for directors or officers
- There is no exclusion for companies with a minimum number of
employees
- If the sub-contractor has no insurance, the contractor is
responsible
- "Independent contractors" may well be covered
- If the injured party is not an employee, the employer may be liable
in tort
Cover
- Cover applies when the injury is in the course and scope of
employment
- Because of the special nature of DBA cover for US employees, course
and scope is broadly interpreted
- Under the "zone of special danger" rules injuries during the period
of employment but not related to job duties may be covered.
Waivers
- The Secretary of Labor, On the recommendation of The head of Any
department or agency In the exercise of her discretion, may Waive the
application of this section with respect to:
- Any contract, subcontract or subordinate contract
- Work location under such contracts
- Or classification of employees
Waivers
- Waivers are routinely granted when:
- Submitted by the proper person
- In the proper form
- Subject to limits and conditions
- Waivers apply to Guam to all employees including US nationals
Waivers
- Do not apply to:
- US Citizens
- People hired in the US
- Legal residents of the US
- Do not apply unless waived employees will receive compensation under
local laws providing for workers' compensation for injuries, illness or
death.
The Defense Base Act
- Is not limited to defense or bases
- Applies to employees not just US nationals
- Applies subcontractors at any level or degree of separation
- Applies to foreign companies hiring third county nationals
- Applies regardless of the employment contract
- Applies regardless of length of employment
- Applies to corporate officers
- Applies to contracts administered by foreign governments
- Applies to contracts if the prime contractor, the administrator and employees are all foreign nationals
- Cannot be waived by agencies on grounds of cost
- Cannot be waived if there is no local workers' compensation act
- Cannot be waived on grounds of country of origin of worker
- Does not include the Longshore Act minimum compensation rate
- Applies to injuries occurring within the US
- Is the employer's exclusive liability and the employee's exclusive remedy
- Applies to injuries during employment not just on the job
- Has constant unanswered questions. These include:
- Independent contractors
- Grants v. contracts
- Supply contracts
- Religious workers
