:

Afghanistan Summary

• The distribution of contractors in Afghanistan by mission category are:
• Logistics/Maintenance 14,382 (47.2%)
• Base Support 2,350 (7.7%)
• Commo Support 1,064 (3.5%)
• Construction 1,953 (6.4%)
• Security 3,156** (10.4%)
• Training 967 (3.2%)
• Translator/Interpreter 1,773 (5.8%)
• Transportation 1,926 (6.3%)
• Medical/Dental/Social Services 128 (.4%)
• Management/Administrative 2,395 (7.9%)
• Other 361 (1.2%)

        Total: 30,455

*Includes Defense Logistics Agency, Army Materiel Command, Air Force External and Systems Support contracts, Special Operations Command and INSCOM.

**1,083 Armed Private Security Contractors

Operation Freedom’s Sentinel Contractor Posture:

o In 1st quarter FY16 there were approximately 30.4K DoD contractors in Afghanistan. The overall contractor footprint in Afghanistan increased by .8% from 4th quarter FY15.
o Local nationals comprise 45.1% of total contractor force; 16,737 US/TCN remain toredeploy.
o Contractor footprint is expected to remain constant until future base closures are finalized.

Iraq Summary

The distribution of contractors in Iraq by mission category are:

• Logistics/Maintenance 618 (30.5%)
• Base Support 263 (13%)
• Commo Support 122 (6%)
• Construction 138 (6.8%)
• Security 118 (5.8%)
• Training 24 (1.2%)
• Translator/Interpreter 381 (18.8%)
• Transportation 158 (7.8%)
• Management/Administrative 172 (8.5%)
• Other 34 (1.6%)

         Total: 2,028

Operation Inherent Resolve Contractor Posture.

o As of 1st quarter 2016, there are approximately 7,838 contractors supporting US government operations in Iraq. About 2,028 of those contractors are supporting DoD funded contracts.

General Data on DoD Private Security Contractor Personnel in Afghanistan

• Private security contractors (PSC) perform personal security, convoy security, and static security missions.
• USCENTCOM reports, as of 1st quarter FY 2016, the following distribution of PSCs in Afghanistan:

• In Afghanistan, the Afghanistan Public Protection Force (APPF) has primary responsibility for mobile security functions. President Ghani recently issued a decree re-authorizing the use of PSCs by U.S. and NATO forces for circumstances where APPF is unavailable or unsuitable. U.S. Forces-Afghanistan and Operation Resolute Support staff are developing policies to ensure strict adherence to Afghan and sending state law in the contracting and operations of these contractors.

Improvements to Management and Oversight of DoD Contractors

• Operational Contract Support Summit. The first comprehensive DoD OCS Summit, attended by senior leaders from across the Joint Staff, OSD, the Services and Combatant Commands, was held on October 8, 2015. The forum reviewed and discussed strategies to better formalize OCS capability and capacity in the Joint Force. Emerging themes centered around: resource challenges (trained personnel and an enterprise level OCS Common Operating Picture); planning for and conducting OCS in all phases of operations, including phase 0; commander engagement; and, expanded training.
• CJTF OPERATION INHERENT RESOLVE (OIR) was turned over to III Corps in September 2015. JS J4 engaged III Corps prior to deployment (July 2015) and provided:

o OCS overview training (July 2105),
o Consulted with III Corps to define OCSIC mission, size and scope,
o Five student seats in Joint OCS Planning and Execution Course (JOPEC) for just in time OCSIC training (August 2015)
o Sustained daily/weekly reach-back training and support (August- October 2015)

In September 2015, JCASO performed an OCSIC initial operating capability (IOC) assessment and reported ‘best JTF OCSIC yet’. Given a view of a possible long-term sustainment mission,
CJTF OIR will assess contractor management policies in the JOA.

Defense Standards for Security Services. 

o Pursuant to Section 833 of the FY2011 NDAA, compliance with American National Standard ANSI PSC.1-2012, “Quality Management Standard for Private Security Company Operations” is required in all DoD contracts for private security services. The requirements and guidance of this standard implement all PSC relevant provisions of US law, Defense Directives and instructions, and promoted consistency with international agreements. Demonstrated compliance with this standard will facilitate identifying technically acceptable contractors and best value. This will enable expedited contract award; mitigate risk of delay of services due to contract award protests; and mitigate risk of contractor non-performance or misconduct in critical early phases of contingency operations. The United Kingdom also requires compliance with this ANSI PSC standard.

o An international (ISO) version of this standard was published by ISO in September 2015. This standard enables international acceptance of the standards in use by the United States and the United Kingdom, increasing consistency and legal compliance in the provision of all PSC services everywhere. ISO recognition will improve competition and manage risk in operational environments which will include PSCs not under the direct control of US or coalition forces. A revision of the PSC DFARS allowing PSCs to demonstrate compliance with either the ANSI or the ISO standard is out for public comment. The final rule is expected to be published in 2QFY16.

• Operational Contract Support (OCS) Functional Capabilities Integration Board (FCIB). This senior executive–level governance forum, chartered by the Under Secretary of Defense for Acquisition, Technology, and Logistics in March 2010, provides strategic leadership to multiple stakeholders working to institutionalize OCS. Co-Chaired by the Deputy Assistant Secretary of Defense for Program Support and Vice Director for Logistics, Joint Staff J4, the FCIB convenes quarterly or as required. On November 24, 2015, the board convened the First Quarter FY16 Principals meeting to review and assess the following:

o OCS Summit 2015 Results and Review
o OCS DOTMLPF Change Recommendation Proposal – Decision Brief
o DoD Contractor Vetting Assessment Update
o USAF OCS Capability Status Update
o DoD Expeditionary Civilian Policy Update
o DCMA Combat Support Agency Review Team (CSART) Update

The Second Quarter FY16 OCS FCIB Principals meeting will be held on February 23, 2016.

• Joint Contingency Acquisition Support Office (JCASO). Planning, implementation, and oversight of OCS are Commander's responsibilities and are essential to establishing a strategy for managing contractors on the battlefield as part of the DoD Total Force. JCASO provides the Combatant Commands a joint enabling capability to integrate, coordinate and synchronize OCS during peacetime, contingency operations, and post-conflict operations. JCASO is an essential part of DLA's combat support agency (CSA) role to support the mission objectives of the combatant commands, the Chairman of the Joint Chiefs of Staff Title 10 responsibilities, as well as the Office of the Secretary of Defense for OCS policy development and implementation. Examples of current JCASO engagements include:

Deployments:

o Deployed 2-member team to support Operation INHERENT RESOLVE-Kuwait, provided guidance and assistance to C-JTF-OIR OCSIC
o Preparing team to support the stand up of the USCENTCOM-Forward OCS Integration Cell in Qatar, providing guidance, assistance, and training.
o Provides OCS support as requested or directed to CCMDs, Service components, and others, including HA/DR such as Operation UNITED ASSISTANCE
o Participates in joint exercises (e.g., OCS Joint Exercise, KEEN EDGE, and JUDICIOUS RESPONSE) to integrate OCS in training and assess the effectiveness of OCS plans.

Joint Training and Education

• Delivered the OCS module in the Joint Logistics Course at the Army Logistics University
• In coordination with the Joint Staff J-4 as the responsible office of OCS joint training, conducted training of assigned and follow-on forces at the Service Component and Task Force Level(s) to perform the functions of an OCSIC.
• JCASO Planners. Sixteen (16) JCASO planners are allocated among the Geographic Combatant Commands and USSOCOM to assist commanders in identifying gaps where a contracted support capability may be required. Planners integrate contracted support into operational plans and synchronize requirements with subordinate commands, the Military Departments, Defense Agencies, other USG Agencies, and coalition partners. The planners have been instrumental in integrating OCS into Combatant Command plans. Based on demonstrated need for additional OCS planning capability in USPACOM, JCASO also established OCS planners at forward locations in USFK and USFJ.
• Operational Contract Support (OCS) Learning Framework. The Department continues to make progress on the Secretary’s and the Chairman's vision for OCS education and training. Several parallel efforts are underway to incorporate OCS into a holistic learning framework that includes education, individual and collective training, exercises, and lessons learned primarily aimed at non-acquisition personnel.
• OCS in Joint Professional Military Education (JPME). The Joint Staff (J7) revised CJCSI 1800.01E, “Officer Professional Military Education Policy (OPMEP)” on 29 May 2015. It now includes eleven (11) specific learning areas incorporating OCS into 3 of the 5 levels of PME/JPME (IAW 10 USC § 2151) which reaches officers in the grades of O-4 to O-10. Joint Staff (J4) OCS and Services Division (OCSSD) is completing work on Version 3.0 of the OCS Curriculum Development Guide (CDG), which offers JPME institutions guidance, options, specific OCS learning objectives, and suggested content for teaching OCS based on the OPMEP learning areas. The Joint Staff (J4) continues to brief faculty of JPME schools on developments in OCS as part of the Joint Faculty Education Conference held annually and to work with schools individually, as needed. The Joint Staff (J4) is working with students at the Naval Post-Graduate School to develop OCS case studies as additional teaching tools.
• Lessons Learned. The Department’s lessons learned program has completed development and is in final coordination. The program includes an OCS Lessons Learned Concept of Operations (CONOPS) and Standard Operating Procedures (SOP) for collecting, analyzing, and processing OCS lessons at the tactical, operational, and strategic level. The CONOPS and SOP leverage DOD’s official system of record for lessons learned, the Joint Lessons Learned Information System (JLLIS) and the Chairman’s Joint Lessons Learned Program.
• Exercises. Planning for OCSJX-16 is underway and scheduled for 13 March – 9 April 2016 at Fort Bliss, Texas. The US Army Contracting Command is providing the exercise director. This year’s exercise brings together nearly 500 trainees from the Active and Reserve forces, the National Guard and our partners representing all Services, U.S. Army South, the 1st Armored Division, the United Kingdom, and Panama, Chile, Brazil, Colombia, and Peru as multinational partner observers. OCSJX-16 will train and assess individual skills and unit OCS capabilities based on a decisive action and stability operations scenario in support U.S. Southern Command. The exercise links contract support integration at the Service component, Joint Task Force, and Combatant Command levels.
• The Joint Staff (J-4) is also providing OCS training expertise to U.S. Africa Command to assist them with incorporating OCS training objectives and content into JUDICIOUS RESPONSE 17 (JR-17) to be held 29 November – 9 December 2016 at various locations. JR-17 will be a command post exercise that integrates the capabilities and functions of its Service components, Combined/Joint Task Forces, the Interagency, and multi-national partners to address selected U.S. Africa Command missions.
• Collective and Staff Training. The Chairman’s Joint Training Guidance Notice (CJCSN 3500.01) provides annual guidance to all DOD Components for planning, executing, and assessing joint training for three consecutive years. It includes High Interest Training Issues (HITIs) which are CJCS special-interest items that CCDRs should consider for emphasis in their training and exercise programs. OCS considerations are reflected in the “Ethics, Values, and Leadership” HITI, the “Joint Logistics Enterprise” HITI, the Joint Operational Access HITI, and the main document as part of efforts to realize Joint Force 2020.
• Universal Joint Tasks & Joint Metrics & Readiness Guide. The Joint Staff (J4) has virtually completed staffing on its Joint OCS Training and Assessments (JOTA) Guide v. 1.0 (formerly the Joint Metrics and Readiness (JMR) Guide), which recommends tasks, standards, and measures aligned to the 4 primary UJTs. The Guide assists planners in integrating OCS into joint training and exercises to help ensure realistic readiness assessments for OCS.
• Individual Training. ODASD (PS) and OCSSD are working together to update the three joint OCS computer-based courses released in 2009. The three courses were “joint training certified” in 2013 and are hosted on JKO, the joint community’s web portal for providing key distributed joint training. In May 2015, initial operational capability (IOC) was established for a new and improved course, Joint OCS Essentials for Commanders & Staff (JOECS), to reflect doctrinal changes in Joint Publication (JP) 4-10 and replace the former OCS introductory-level course. Full operational capability (FOC) is expected by the third quarter of FY 2016. In FY 2015, JOECS had 1466 completions, the Introduction to Operational Contract Support (OCS) Planning had 914 completions, and Operational Contract Support (OCS) Flag Officer-General Officer (FOGO) Essentials Course had 332 completions. So far in FY 2016, completions are 271, 380, and 286 respectively.
• The Joint Staff (J4) OCSSD teaches a Joint OCS Planning and Execution Course (JOPEC) at the geographic combatant commands (GCCs) via mobile training teams (MTTs). JOPEC is taught at every GCC and 527 students have been trained to-date. An additional 240 students are expected to complete JOPEC by the end of FY 2016. The JS J4 is seeking to permanently establish JOPEC at a JPME institution or a joint training center.
• On February 25, 2015 Army Logistics University (ALU) began teaching a revised Army OCS course program of instruction. The new course places greater emphasis on mission analysis, requirements development and OCS across the joint force. Due to demand, ALU hired additional instructor capability. In FY 2015, 651 personnel across the Services were trained during 13 classes and Fort Lee and 11 MTTs. In FY 2016, ALU projects 630 trainees from 12 classes at Fort Lee and 13 MTTs.
• OCS Planning. Using the guidance found in the Chairman of Joint Chiefs of Staff Manual (CJCSM) 3130.03, Adaptive Planning and Execution (APEX) Planning Formats and Guidance, the Combatant Commands continue to document and expand their OCS planning efforts and products. The Joint Staff (J4) is developing a separate manual, CJCSM 4301.01A, Planning OCS, to assist OCS planners in developing procedures and guidance that integrate, synchronize, prioritize, and focus OCS capabilities on achieving a supported commander’s operational objectives and desired effects for the various types of plans. Action officer level staffing is complete and the Joint Staff (J4) is adjudicating comments on the manual. Anticipated publication is 4Q FY 2016. The Joint Staff J4 is actively involved in the review of Combatant Command Contingency and Operational Plans, as a member of the Joint Planning Execution Community (JPEC) and is developing specific guidance for the Logistics Supplement to the Joint Strategic Capabilities Plan to increase the level of planning detail associated with OCS.
• OCS Process Maps and Supporting Guidance. In November 2015, the OCS process map team consisting of subject matter experts from the Joint Staff J4 OCSS Division, Deputy Assistant Secretary of Defense Program Support (DASD (PS)) and DLA’s Joint Contingency Acquisition Support Office (JCASO) completed 42 process maps, supporting narratives and developed an outlined for supporting sample documents, best processes and templates. The OCS process maps will be distributed to OCS practitioner and JTF’s staffs providing them with a step-by-step road map to integrate and execute key OCS task across all phases of an operation. The process maps will be incorporated into a future OCS Handbook product that is currently in development.
• OCS Reporting. The Joint Staff J4-led OCS reporting working group (RWG)—with members from OSD, Services, Agencies, and CCMDs—continues to collaborate on OCS reporting to improve monitoring of the status of OCS capability. Participants share templates, techniques, and issues and identify and refine reporting measures to enable better monitoring and integrations of OCS into DoD processes. As a result of the group’s efforts, accuracy and value of OCS risk assessments are improving, functional CCMD reporting has matured to mirror Geographic CCMD (GCC) reporting, risk assessments have expanded to include collaboration across joint staffs and even the interagency, and future changes to reporting policy have been identified. OCS reporting from CCMDs are being monitored and integrated into Strategic level reporting and RAs. Additionally, JS J4 conducted an assessment of actions required to close OCS reporting gaps identified in the JROC-endorsed OCS Initial Capabilities Document (ICD) as well as changes since the ICD was published (e.g., new legislative requirements). Collaboration with RWG members is providing revisions to the OCS Action Plan to more comprehensively track and close OCS reporting gaps in a timely manner.
• OCS Human Capital Strategy. To address OCS ICD Gap #3 requiring a human capital strategy, OUSD (Personnel & Readiness) and JS J4 have identified additional actions and tasks to be tracked in the OCS AP. The JS J4-initiated study has conducted research and is performing interviews with personnel across DoD to assess and recommend manpower, personnel, and training requirements. Results will enable subsequent requirements validation and resourcing decisions.

HOW TO APPLY ⇒

Background of the DBA

The DBA, enacted in 1941, establishes a uniform, nationwide, federally administered—and exclusive—workers’ compensation scheme for the benefit of all government contractor employees who suffer ‘‘injury or death . . . under a contract . . . performed outside the continental United States . . . in connection with the national defense or with war activities.’’ 42 U.S.C. § § 1651(a), 1651(a)(4), 1651(b)(1). ‘‘Except as . . . modified,’’ the DBA incorporates the provisions of the Longshore and Harbor Workers’ Compensation Act, (‘‘LHWCA’’), 33 U.S.C. § 901 et seq., ‘‘in respect to the injury or death of any employee’’ covered by the DBA. 42 U.S.C. § 1651(a); see O’Keeffe v. Pan Am. World Airways, Inc., 338 F.2d 319, 322 (5th Cir. 1964) (discussing the DBA’s independent purposes as well as its incorporation of the LHWCA compensation mechanism). The DBA’s purpose is reflected in its own language, which establishes a federally administered, predictable, no-fault, and exclusive workers’ compensation scheme for military support contractor employees who are injured or killed overseas ‘‘in connection with the national defense or with war activities.’’ 42 U.S.C. § 1651(b)(1).

The unique objectives of the DBA are also reflected in the provisions of the War Hazards Compensation Act (‘‘WHCA’’). Under the WHCA, the United States is required to reimburse employers and insurers for claims paid under the DBA in connection with an ‘‘injury [or death that] proximately results from a war-risk hazard.’’ 42 U.S.C. § 1701(a).

The WHCA supplements the DBA by providing for (1) reimbursement of employer/carrier payments in cases of overlapping coverage where the injury occurred within the scope of the employment and was caused by a war-risk hazard; (2) direct coverage to an employee when the DBA does not apply (i.e., when the incident occurred outside the scope of employment) but the employee was injured as a result of a war-risk hazard; and (3) coverage for capture and detention, in addition to injury and death.

The DBA’s exclusivity-of-remedy provision, entitled ‘‘Liability as exclusive,’’ declares that [t]he liability of an employer … under this chapter shall be exclusive and in place of all other liability of such employer … to his employees (and their dependents) … irrespective of the place where the contract or hire of any such employee may have been made or entered into.

42 U.S.C. § 1651(c). The DBA, like the LHWCA and other workers’ compensation schemes, was designed to strike a balance between employees and employers. See Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, 461 US 624, 636 (1983). ‘‘Employers relinquished their defenses to tort actions in exchange for limited and predictable liability. Employees accept the limited recovery because they receive prompt relief without the expense, uncertainty, and delay that tort actions entail.’’ Id.; see also Potomac Elec. Power Co. v. Director, Office of Workers’ Comp. Programssation legislation is well recognized’’).

Although the DBA establishes the exclusive, administrative, compensation remedy for ‘‘the injury or death’’ of any covered employee, 42 U.S.C. § 1651(a), it does not define the term ‘‘injury.’’ As such, courts look to the LHWCA, which defines ‘‘injury’’ as accidental injury or death arising out of and in the course of employment . . . and includes an injury caused by the willful act of a third person directed against an employee because of his employment. 33 U.S.C. § 902(2).

Responses to Plaintiffs’ Recent Attempts to Avoid DBA Exclusivity

Whether The Injury Arose In The Course Of Employment

The DBA covers injuries that arise out of or in the course of employment. In the key Supreme Court case on this issue, the Court explained that the definition of injury did not require ‘‘a causal relation between the nature of employment of the injured person and the accident.’’ O’Leary v. Brown-Pacific-Maxon, 340 US 504, 506-07 (1951). The Court further stated: ‘‘Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the obligations or conditions of employment create the zone of special danger out of which the injury arose.’’ Id. at 507 (internal quotation marks omitted).

Plaintiffs have argued in several cases that their injuries did not arise within the course and scope of their employment. This argument has been successful in some cases. For example, in Jones v. Halliburton, 791 F. Supp. 2d 567, 587 (S.D. Tex. 2011), the plaintiff was allegedly sexually attacked at night, while she was offduty in her barracks room. The court held that the plaintiff’s alleged sexual assault was not within the course and scope of her employment because she was not on call while working for the defendant and her alleged sexual assault occurred while she was off-duty. Id. at 583-88. The court further found that the requirement that the plaintiff live in housing provided by the defendant and her limited recreational and social opportunities failed to create a zone of special danger. Id. at 587.

In contrast, in Taylor v. Kellogg Brown & Root, Inc., No. H-10-2043, 2011 WL 2446429, at *5 (S.D. Tex. May 20, 2011), aff’d, 2011 WL 2412910 (S.D. Tex. June 15, 2011), the court held that the plaintiff, who was on duty, albeit in a break room, when she was assaulted, was acting within the course and scope of her employment and thus the DBA applied. The court also found that the plaintiff’s post in Afghanistan qualified as a location that created ‘‘ ‘a zone of special danger,’ ’’ which ‘‘link[ed] her injuries with her employment.’’ Id. ing O’Keeffe, 338 F.2d at 325).

As such, employer defendants can focus on certain arguments on the zone of special danger including: (1) the plaintiff’s obligations and conditions of employment create the zone of special danger out of which the alleged injuries arose; (2) employment in locations like Iraq and Afghanistan qualify as locations that create a zone of special danger linked with the plaintiff’s injuries; and (3) the alleged injuries arose while plaintiff was on duty.

Whether The Employer Specifically Intended To Injure The Plaintiff

In several cases, plaintiffs have argued that the defendant­ specifically intended to injure them, in an effort to avoid the DBA exclusivity. Plaintiffs have included allegations such as battery and intentional infliction of emotional distress, and argued that such intentional conduct by the defendant falls outside of the DBA exclusivity.

While neither the DBA nor the LHWCA expressly sets forth a specific intent exception to the exclusive remedy provision, some courts have held that an employee may sue his employer in tort where the employer harbored a purposeful, individualized intent to injure the employee. See, e.g., Johnson v. Odeco Oil & Gas Co., 679 F. Supp. 604, 606-07 (E.D. La. 1987) (‘‘Johnson I’’), aff’d 864 F.2d 40 (5th Cir. 1989) (‘‘Johnson II’’).

In Fisher v. Halliburton, 667 F.3d 602, 620 (5th Cir. 2012), the court of appeals upheld the DBA exclusivity where the war-zone contractor employees alleged that the contractor knowingly placed them in harm’s way. The court found that ‘‘coverage of an injury under the DBA precludes an injured employee from recovering from his employer under a ‘substantially certain’ theory of intentional-tort liability.’’ It noted that it was not dealing with a situation where the employer assaulted the employee or conspired to inflict an assault on the employee. Id.

There are no published cases where the plaintiff has succeeded on the merits in arguing that an employer had a specific intent to harm the employee and thus the DBA exclusivity does not apply. This argument, however, remains an issue for employers when moving to dismiss tort claims by employees or former employees based on the DBA. The best rebuttal to such an argument by plaintiffs is that, unless the employer assaulted the employee or conspired to assault such employee, the DBA exclusivity applies.

Whether The Employer And Other Affiliated Entities Are The ‘‘Employer’’ For Purposes Of The DBA

The issue of whether the defendant employer and other affiliated entities are considered the ‘‘employer’’ for purposes of the DBA has been raised in several cases where the DBA has been at issue.

The overarching rebuttal by defendant employers is that, as a matter of law, all of the employer entities are entitled to the benefit of the DBA’s exclusivity provision. The intent of the DBA is directly contradicted when an employee, who refers to himself as an employee of the parent corporation during his employment and when seeking DBA benefits, then tries to circumvent the DBA by arguing that the subsidiary to which he entered into an employment agreement with was his sole employer.

Multiple affiliated entities are regularly dismissed as the employer pursuant to the DBA. See, e.g., Schmidt v. Northrop Grumman Sys. Corp., No. 3:04-cv-042-JTC, 2005 U.S. Dist. LEXIS 24688, at *14 (N.D. Ga. Mar. 2, 2005); Ross v. DynCorp, 362 F. Supp. 2d 344 (D.D.C. 2005); Carr v. Lockheed Martin Technical Servs., Inc., No. Civ. SA-97-CA-1408-OG, 1999 WL 33290613 (W.D. Tex. Feb. 8, 1999). Courts also regularly dismiss multiple affiliated entities as the employer in cases involving the LHWCA and New York Workers Compensation Law. See, e.g., Claudio v. United States, 907 F. Supp. 581, 589 (E.D.N.Y. 1985); Carusone v. Three Ctrs. (Olroho) Assocs., 124 A.D.2d 317 (N.Y. App. Div. 3d Dept. 1986); Carinha v. Action Crane Corp., 58 A.D.2d 261 (N.Y. App. Div. 1st Dept. 1977); Shine v. Duncan Petroleum Transp., Inc., 60 N.Y.2d 22 (N.Y. 1983). The appropriate analysis is elucidated in Claudio: Multiple defendants are entitled to the benefits of DBA exclusivity where they ‘‘worked in concert as a single entity, with interrelation of operations, common management, centralized control of labor relations and common ownership.’’ 907 F. Supp. at 588.

The key argument for employers is that the parent company and its subsidiaries and affiliates acted as a ‘‘single entity’’—a single, integrated enterprise that executed the contract and constitutes the plaintiff’s employer for purposes of the DBA.

Additionally in Fisher v. Halliburton, 703 F. Supp. 2d 639, 662-65 (S.D. Tex. 2010), rev’d on other groundsployer under the DBA. Idognized there can be multiple ‘employers’ under the [LHWCA] and each company is, therefore, entitled to immunity under the Act.’’ Id. at 663.

The Fisher decision relies in large part on the Fifth Circuit’s decision in ties, Inc. v. Harman Unlimited, Inc., 625 F.2d 1248 (5th Cir. 1980). See Fisher, 703 F. Supp. 2d at 664. In field Safetyposes of the LHWCA. Id. at 1253-54. Instead, the Fifth Circuit applied the ‘‘relative nature of the work’’ test. Id. at 1254-56. While the Fisher versed by the Fifth Circuit, the ‘‘single entity’’ issue was not appealed and still remains good law.

Practice Tips for Contractors

1. On the issue of ‘‘zone of special danger,’’ defendant employers should locate documents that show that the plaintiff has admitted that he or she was injured in the course of employment. In most cases, the plaintiffs will seek DBA benefits from the Department of Labor (‘‘DoL’’) and those proceedings often become contentious. During those proceedings, they will argue that their injuries stemmed from their work for the employer. The DBA forms themselves are useful on this issue,sue, as the questions address this scope of employment issue (e.g., LS-203 – ‘‘injured while doing regular work?’’). The pleadings, depositions, and hearing transcripts from plaintiffs’ DoL proceedings are also very helpful.
2. Regarding the specific intent issue, plaintiffs’ DBA documents in the DoL proceedings likely will show that the plaintiffs never mentioned any intent to harm by their employer.
3. When addressing the employer issue, the plaintiffs’ employment agreements and other personnel documents also typically support dismissal under the DBA because the plaintiffs agree to be bound by the parent company’s policies and procedures. Employers can further solidify this defense by requiring that employees sign documents acknowledging that the DBA is their exclusive remedy for claims against the parent company and any of its affiliates.

In many of these DBA cases, the plaintiffs concede in the parallel DoL proceedings that the parent company is their employer. The concessions are found in DBA forms, pleadings, depositions, and hearing transcripts. Those statements can be used in the litigation to show that the plaintiffs knew that the parent corporation was their employer and are now arguing that the subsidiary is their sole employer to avoid the DBA exclusivity.

HOW TO APPLY ⇒