An intriguing lawsuit filed in the great state of Washington reminds us of the 2023 implosion of a deep CV vehicle in the Atlantic. NBC News reports. A carbon fiber craft descended in June 2023 in hopes of reaching the wreck of the famed Titanic ocean liner. Communication with the vehicle was lost, and a frantic search ensued, but only debris and remains were recovered. There were various stories of the lost lives, the craft design, hubris, entitlement, etc.
The present lawsuit alleges that a veteran Titanic diver was hired by the exploration company/tourist attraction to assist with navigation. He reportedly descended to the wreckage of the ship almost 30 times over his career. His expertise and experience can hardly be doubted. He was an able and experienced pioneer in a very dangerous enterprise.
However, the news coverage raises an intriguing question that relevantly persistent in worker’s compensation. The fact of being “hired” by a person or entity to perform labor is not dispositive as regards the implications of worker’s compensation. This social safety net is about "employers" and "employees," not "hirers" and "hirees."
I use the phrase "employer/employee" specifically. I cite the implications specifically. In that setting, there is a focus on the employer detriment of liability for worker’s compensation benefits, a corresponding gain for employees. Too often, there is disregard for the corresponding employer benefit of immunity from civil liability. Workers' compensation is a trade, a "this for that," a compendium of quid pro quo. That said, it is not an easily defined or quantified trade. The amount of benefits in any case may be "it depends."
This immunity is illustrated in the present situation, as the estate of the expert diver seeks monetary damages based upon the negligence of the deep-sea vehicle, and the company that deployed it. They have filed a suit for civil damages. Negligence is a tort concept. It is founded on the allegation of responsibility through action or inaction.
Would these individuals, designer and deployer, be protected from tort liability (immune) based on the employee/employer relationship? The question can be easily answered definitively, as above, with “it depends.” That is too often the answer, but it is often accurate. Across the country, there are dozens of definitions of "employee," and the specific state law must be analyzed and examined.
Some of this comes down to the word “employee" itself. Whether a particular agreement for compensation in exchange for work was an “employee/employee” relationship in any case often comes down to this. Did the dive company "hire" this expert as an independent contractor or an employee? This is a difficult analysis for a variety of reasons.
First, there are at least 60 social safety net compensation programs in the United States. Each state has a worker’s compensation statute, and there are a variety of federal programs. Any of them might provide a specific designation or definition regarding who is or is not a “employee.” Thus, the analysis might be controlled by a particular state worker’s compensation law.
Complicating the situation, any particular workplace accident might find jurisdiction for any entitlement or dispute in a variety of states. I was somewhat surprised during a recent panel presentation when an expert was surprised that there is a "choice of forum" in workers' compensation. Of course, there is, and always has been. Smart lawyers strive to find the benefit package most beneficial to her/his client's best interests. Others, simply file claims in the state the lawyer works in, a default that is potentially self-serving and not necessarily the best choice.
Different states may embrace jurisdiction over accidents that involve people who live in that state, people who were injured in that state, people who were injured while working for a company domiciled in that state, or people who were hired in an employment contract finalized in that state. Again, to be clear, “it depends." It depends on each state's law. Every case may be different and in any event the four states delineated above may be different. The different combinations are mind-boggling. There are literally thousands of potential combinations of these 60 jurisdictions.
In order to make matters a bit more complex, it has also been noted that some states have variable and competing definitions of “employee” which can make a determination complex, even after the appropriate jurisdiction is determined. Thus, in selecting a state in which to file, a lawyer might be well advised to know what presumptions, burdens, and definitions she/he is undertaking by selecting a particular state.
Additionally, it is therefore also possible that in a particular jurisdiction, someone may be an “employee“ for purposes of worker’s compensation, but an “independent contractor,” for purposes of unemployment, compensation, tax, withholding, and a variety of other business challenges
There is potential for confusion in the selection of words. That someone is “hired” is not in itself, necessarily controlling. There is the potential under various state laws for arguments of construction, semantics, and factual disputes. Many thirst for bright-line distinctions, and simple determinations. For better or worse, the world of workplace injuries can instead be a place of subtle distinctions and various shades of gray.
The other reminder found in this news story is the lawsuit was filed 14 months after the event. In most state worker’s compensation systems and courts, there are statutes of limitations, which can limit rights to file claims or complaints after some period of time. These can be absolute or flexible. These too differ from state to state. There is no suggestion that such will play a role in this deep-sea explorer situation, but the potential for such preclusions comes to mind whenever there are months-long delays in filing, and whenever making a filing state selection. The potential of such laws should be remembered and respected.
For many, these distinctions are never vetted. People are “hired,” perform their duties and tasks, and are appropriately compensated. The implications of "employee" or "contractor" are usually limited to instances of work injury, tax audit, or premium disputes. It is in the debates and discussions that details are often described and discerned. In this, employers and workers face a distinct choice.
They may incur the upfront cost of a detailed, defined, written agreement with iron-clad definitions and intent. Or, they may enter into casual agreements that are more subject to retrospective interpretation and argument. Neither is the "right" answer in all instances.
In this, there is a classic dichotomy found in all contract law. It is important, because the upfront process provides greater assurance of fewer, if any, retrospective analyses and disputes. However, upfront is undoubtedly, more time-consuming, and expensive.
As I tell my law students persistently, neither solution is “correct” per se. A 100-page, all-bases-covered, written contract is likely appropriate when spending hundreds of millions yuof dollars on some project. As useful as it is in that context, it is ludicrous as a tool and purchasing a one-dollar candy bar at the local grocery store. Both value exchanges are contracts, but in deciding which merits the investment, the parties are performing an assessment of risk and a benefit analysis.
It is no different in the world of hiring. A worker's status can easily be assumed or presumed by either the business or worker. And either side may be either right or wrong in those conclusions.