Alaska is the largest state in the United States, over twice the size of Texas. It is larger than the combined area of the twenty-two smallest states. At the same time, the total estimated population is a little over 730,000, which is the 47th smallest population in the U.S., trailed only by North Dakota, Vermont and Wyoming. Considering these variables, what should be the geographic boundaries for the relevant labor market in Alaska?
I contend that the relevant labor market in Alaska should be defined by Alaska statute instead of Longshore or Defense Base Act caselaw.
After a claimant establishes a prima facie case of total disability, the burden shifts to the employer to establish suitable alternative employment. The employer must then demonstrate the existence of realistically available job opportunities within the geographic area where the employee resides which he is capable of performing, considering his age, education, work experience, and physical restrictions, and which he could secure if he diligently tried. Keep in mind that an employer is not an employment agency. New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031 (5th Cir. 1981).
To be sure, there is a wealth of caselaw available for Longshore litigants to determine the relevant labor market. Typically jobs should be available within a claimant’s local community (i.e. the community in which the injury occurred or in which the claimant resided when the injury occurred). The Benefits Review Board has rejected jobs that are 65 to 200 miles away. At the same time, however, for some Defense Base Act claimants, the Board has approved the use of a global labor market survey to demonstrate suitable alternative employment. Patterson v. Omniplex World Servs., 36 BRBS 149, 154 (2003).
There are also relocation cases that discuss an employers burden following the injured worker’s move to a new locale. In cases where the injured worker relocates after the injury, the Fourth Circuit held that administrative law judges should determine the relevant labor market after considering such factors as claimant’s residence at the time he files for benefits, his motivation for relocating, the legitimacy of that motivation, the duration of his stay in the new community, and the availability of jobs in the new location as opposed to his former residence. See v. Washington Metro. Area Transit Auth., 36 F.3d 375 (4th Cir. 1994); see also Wood v. U.S. Dept. of Labor, 112 F.3d 592 (1st Cir. 1997) (approvingly citing See).
For Alaska, I suggest that litigants remain cognizant of the relevant caselaw. At the same time, litigants should not ignore the Alaska statutes that discuss the relevant labor market for state compensation claims. But can Longshore or DBA litigants borrow from state workers’ compensation schemes to answer Longshore or DBA questions? The answer is, “Yes.”
Use of state workers’ compensation schemes to define or clarify the Longshore or Defense Base Act is nothing new in the Ninth Circuit, which has jurisdiction over Alaska. Consider that court’s recent Kealoha decision. The Ninth Circuit used state workers’ compensation decisions to abandon the “irresistible impulse” rule in Longshore suicide cases in favor of a “chain of causation” test. Kealoha v. Dir., OWCP, 713 F.3d 521 (9th Cir. 2013). The court even went so far as to specifically state:
State workers’ compensation laws are relevant here because Congress passed the Longshore Act to provide workers’ compensation to maritime workers who could not be covered by state workers’ compensation laws. See H.R.Rep. No. 69-1767, at 20 (1927) (noting that the law will afford maritime workers “the same remedies that have been provided by legislation for those killed or injured in the ocurse of their employment in nearly every State in the Union”); S.Rep. No. 69-973, at 16 (1926) (“If longshoremen could avail themselves of the benefits of State compensation laws, there would be no occasion for this legislation….”).
Id. at n.2.
If state workers’ compensation laws are relevant in the Ninth Circuit, then Alaska’s statutory definition of the “relevant labor market” should be relevant too. In Alaska, the “relevant labor market” includes: (1) the injured worker’s area of residence; (2) the area of claimant’s last employment; (3) the injured worker’s state of residence; and (4) the entire State of Alaska. See Alaska Stat. § 23.30.180 (2013). The Supreme Court of Alaska also weighed in on the “relevant labor market,” and its reasoning is persuasive:
We have held that the requirement that the employer provide evidence of regular and continuously available work in the statutorily defined market has been satisfied by surveys of specific and relevant markets. This implies that evidence about the specific market is required. Moreover, as a general proposition, we note that conditions affecting the employment markets in Alaska are sufficiently different from conditions affecting employment markets in other parts of the country that evidence specific to Alaska is normally required when Alaska is a relevant labor market under AS 23.30.180(a).
Leigh v. Seekins Ford, 136 P.3d 214, 220 (Alaska 2006) (noting also, on p. 221, its specific rejection of the Ninth Circuit requirement in Longshore cases that employers identify specific jobs).
Taken together, Alaska Stat. 23.30.180 and Leigh demonstrate that the labor market for Alaska state workers’ compensation is much broader than the judicially-created geographic boundaries for Longshore and Defense Base Act claims. Instead of holding fast to geographic boundaries that apply to the contiguous United States, Longshore and DBA employers and carriers should not be shy about arguing for the inclusion of the “relevant labor market” definition created by the Alaska legislature and applied by Alaska’s highest court.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)