“No Fish—No Pay” Practices Violate Fair Labor Standards Act
By John Merriam
“John, I need your help on a maritime case.” It was Patrick Pleas on the other end of the phone call, a legal aid lawyer from Northwest Justice Project in Wenatchee. I’d worked with Patrick before, when another of his clients from Eastern Washington had been treated shabbily on a factory trawler. “I’ve got a kid from Yakima named Leonardo who’d never worked on a fish factory ship before. He was verbally promised 16-hour shifts, seven days a week, at 11/hour with time-and-a-half pay for hours worked more than 40 per week. He signed a three-month contract starting May 30, 2019. He was told he was going to make a lot of money. But there were long periods when no fish were delivered, and he was given no work and no pay. He quit in the middle of his contract. After paying for travel to and from Alaska, Leonardo owed more than he’d earned.”
“What’s the name of the boat?”
“The Cape Grieg, run by E&E Foods.” E&E Foods was a relatively new player in the fishing industry. I’d had problems with them before, about the way they treated theiremployees.
“This is a new one for me, Patrick. It’s acceptable on factory trawlers, boats that catch the fish that’s processed, where the processors work for a share of the profits. On vessels that process fish only – pure factory ships like the Cape Grieg – the processors are paid a fixed hourly wage plus overtime. When other factory ships don’t have fish to process, they usually give their processors busywork, like cleaning the factory and polishing the brass.”
Patrick went on to tell me that Leonardo was so desperate to make some money that he begged the factory supervisor to put him to work. “’No fish – no pay!’ he was told. Leonardo wanted to quit in the beginning but he didn’t have enough money to fly home from Alaska. But he finally did quit anyway and was dropped off at Sand Point, Alaska. From there he somehow made it to King Salmon, where he was stranded with no plane ticket and only about $50 in his pocket.”
“That probably violates the law,” I interrupted Patrick. “Alaska has a statute requiring employers who bring workers into the state to give them a way out. How did Leonardo get home?”
“He couldn’t at first. He had earned some money on the boat but the Captain wouldn’t pay him when he quit. Leonardo paid a woman in King Salmon $50 to spread his sleeping bag in her back yard. His sister-in-law loaned him enough money for airfare. He didn’t eat until he got to the airport in Anchorage from King Salmon.”
“Leonardo is definitely entitled to be reimbursed for southbound airfare,” I said. “Let me do some research into whether he’s entitled to more wages as well. In the meantime, ask Leonardo if he has a copy of his contract.”
Leonardo could be called to go to work at any time during his 16-hour shifts when catcher boats delivered fish to the M/V Cape Grieg. I wondered if he was entitled to at least the federal minimum wage while he waited for fish to process. I called some of my lawyer-pals who filed cases for wages and overtime under the Fair Labor Standards Act, 29 U.S.C. sec. 201 2 et seq. None of them was aware of any cases exactly on point about a fish factory ship – and I found none on my own – but they did refer me to a line of cases where ‘on call’ employees were found to be entitled to compensation. The test, at least for landlubbers, was whether the employee was ‘engaged to wait’, as opposed to ‘waiting to be engaged’. 29 CFR sec. 785.14. In other words, was the employee forced to stand by until being called to work, or could the employee do other things while waiting for work, like running errands or working another job. See. Owens v. Local 169, 971 F.2d 347 (9th Cir. 1991).
In Leonardo’s situation, he was trapped on a factory ship off Alaska. All he could do during his shift when there was no fish to process was read or play cards. According to the cases on ‘standby time’ I was referred to, the key question is whether the time spent waiting benefits the employee or the employer. The answer seemed obvious.
The U.S. Dept. of Labor enforces the Fair Labor Standards Act. I called the DOL’s Anchorage office to ask what its position was on ‘no fish – no pay’ practices. I got a wishywashy response. The investigator I talked to said she needed more facts, after I’d given her all the facts. It was apparent that the DOL hadn’t dealt with this practice before.
I was worried that what E&E Foods was doing would become a fad in the fishing industry and copied by other fish processing companies. I decided to bring a test case and try to nip this practice in the bud. I called Patrick back, told him that I was going to file suit, and forwarded a fee agreement for Leonardo to sign.
Before filing suit, I sent E&E Foods a demand letter alleging that its practices violated the Fair Labor Standards Act and that Leonardo was entitled to minimum and overtime wages for all of his 16-hour shifts whether he was processing fish or not. A few days later I was contacted by a prominent Seattle maritime lawyer who made a settlement offer for everything I was demanding, including reimbursement of airfare.
As much as I wanted to use Leonardo for a test case, I couldn’t in good conscience tell him that I wouldn’t be able to get him more money than E&E was putting on the table, but to refuse the settlement offer so that I could try to establish precedent.
The case settled for what E&E offered. I still want to stop this practice. If any readers of this article have a client who was shorted on wages by a ‘no fish – no pay’ policy on a fish factory ship, please contact the undersigned.
John Merriam is a former merchant seaman, now a sole practitioner at Seattle’s Fishermen’s Terminal, who restricts his practice to the representation of claimants for maritime wages an injury.