In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3624

JOHN H. HARKINS, et al.,

Plaintiffs-Appellants,

v.

RIVERBOAT SERVICES, INC.,

Defendant-Appellee.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 99 C 0123—William J. Hibbler, Judge, and 

Morton Denlow, Magistrate Judge.

____________

ARGUED SEPTEMBER 10, 2004—DECIDED OCTOBER 6, 2004

____________

Before FLAUM, Chief Judge, and BAUER and POSNER,Circuit

Judges.

POSNER, Circuit Judge. The plaintiffs in this suit for

overtime pay under the Fair Labor Standards Act are 21

former employees of the defendant, which employed them

on a gambling boat; 14 of the 21 also claim that they were

fired in retaliation for making overtime claims, which

likewise is forbidden by the Act.

The boat’s home port is East Chicago, Indiana, on Lake

Michigan. Like a number of other states, Indiana permits
2 No. 03-3624

gambling only on “riverboats.” Ind. Code § 4-33-9-1. This

curiosity of American public policy has been well explained by

William Blake Bennett, “Waterborne Woes: Legal Difficulties

of Riverboat Gambling in Emerging Jurisdictions,” Nev.

Lawyer, Feb. 1985, p. 19:

Riverboat gaming undoubtedly has been chosen by

gaming interests as a means by which casino gaming

could be made more politically acceptable, both because

it is considered as a less intrusive means of operation

within a community, and because of its potential

benefits to maritime interests, especially in areas where

the shipbuilding industry has been reeling from the

effects of a depressed offshore oil industry and from

cutbacks in military vessel construction. Riverboat

gaming also conjures up romantic notions of the past

along the Mississippi River, and has been touted to the

public as a means by which to create jobs, attract tourists,

provide for economic development and enhance tax

revenues by a voluntary form of taxation, while still

avoiding the perception of casinos as a permanent part

of the fabric of a community.

The Showboat Mardi Gras Casino, on which the plaintiffs

worked, is a real ship despite its outlandish name and is

considered a “riverboat” though it plies Lake Michigan

rather than a river. Built in Florida, it sailed from its birthplace to East Chicago under its own steam. The plaintiffs

were members of the ship’s “marine crew.” That is, they

were not waiters or croupiers, but instead were responsible

for the operation of the ship or (as comprehended within

that term) the safety of the ship’s passengers. The casino

itself is operated by Harrah’s, which hired the defendant to

staff and supervise the maritime aspect of this boat-casino

hybrid. Most of the plaintiffs, however, were not directly

involved in navigation or engine-room work, and indeed
No. 03-3624 3

spent much of their time doing the kind of housekeeping

chores that they would have done in a casino that was on

land—which, they argue, is what the Showboat Mardi Gras

Casino really is, since it spends at least 90 percent of its time

moored to a pier in East Chicago. This high incidence of

maritime inactivity is due in part to the fact that the lake is

too rough for the passengers’ taste much of the year, but

mainly, we imagine, to the passengers’ not being much interested in sailing; they’re interested in gambling and are

happy to do it while the ship is moored, without having to

risk becoming seasick. (It is hard to believe that weather or

water conditions, though basically the only statutory excuses

for allowing gambling while the boat is docked, Ind. Code

§ 4-33-9-2, prevent its sailing 90 percent of the time.) When

the ship does sail, it is for short distances—indeed, without

special permission by the state’s gambling commission, a

cruise may not exceed four hours, Ind. Code § 4-33-9-3—and

so the crew never has to sleep over in the ship. Realistically,

their life differs only slightly from that of ordinary casino

workers. The Fair Labor Standards Act (FLSA) exempts

from its overtime provisions persons employed as seamen. 29

U.S.C. § 213(b)(6). The plaintiffs argue that they are not

seamen because they do not do the distinctive work of

seamen and do not work on a real ship but on a kind of

glorified houseboat.

The district court dismissed the overtime claims of 18 of

the 21 plaintiffs because no written consents by them to join

in this suit had been filed with the court before the statute

of limitations expired. The case then went to jury on the

overtime claims of the remaining three plaintiffs and on the

retaliatory-discharge claims of the 14 plaintiffs who had

made such claims. The jury awarded a verdict for the

defendant on all the claims. All 21 plaintiffs appeal.

In a collective (or, as it is sometimes called, a representative) action under the FLSA, a named plaintiff sues “in be-
4 No. 03-3624

half of himself . . . and other employees similarly situated.

No employee shall be a party plaintiff to any such action

unless he gives his consent in writing to become such a

party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b). (Compare class actions

under Fed. R. Civ. P. 23(b)(3), in which the consent of class

members is not required; instead they have a right to be

notified of the class action and to opt out of it and seek their

own remedies. Fed. R. Civ. P. 23(c)(2)(B).) The plaintiffs’

counsel asks us to overlook the failure to comply with the

statute. He argues that since all 18 were actually named as

plaintiffs in the complaint and participated in discovery,

their consent to be parties can be presumed and so the failure to file written consents for them was harmless, a mere

failure to comply with a technicality.

The statute is unambiguous: if you haven’t given your

written consent to join the suit, or if you have but it hasn’t

been filed with the court, you’re not a party. It makes no

difference that you are named in the complaint, for you

might have been named without your consent. The rule requiring written, filed consent is important because a party

is bound by whatever judgment is eventually entered in the

case, and if he is distrustful of the capacity of the “class”

counsel to win a judgment he won’t consent to join the suit.

We are inclined to interpret the statute literally. No appellate decision does otherwise.

The importance of a strict interpretation is illustrated by

this case. Eight years after the suit was filed, Mr. Rossiello,

the class counsel, who has previously been sanctioned on

more than one occasion for his conduct of litigation, Dormeyer

v. Comerica Bank-Illinois, 226 F.3d 915, 916-17 (7th Cir. 2000)

(per curiam); Youker v. Schoenenberger, 22 F.3d 163, 169 (7th

Cir. 1994), has still not produced written consents from the

18. All, it is true, are named in the complaint as plaintiffs.
No. 03-3624 5

But some were added late, and some who appeared in the

original complaint disappeared when the complaint was

amended. Rossiello emphasizes that all the plaintiffs have

been deposed, but this hardly indicates that they wanted to

have their rights adjudicated in this proceeding or be represented by counsel chosen by other plaintiffs.

The special oddity of this suit is that had it not been

designated in the complaint as a collective action—that is,

an action on behalf not only of the named plaintiffs but also

of others similarly situated to them—there would be no

requirement of filed written consents. The requirement is

applicable only to collective actions. That is why those of the

18 who complained that they were fired in retaliation for

filing overtime claims remained parties to the retaliation

claims; those claims had not been pleaded as collective

actions. It now appears that Mr. Rossiello long ago abandoned any idea of suing on behalf of those employees of the

defendant whom he did not add to the complaint. Had he

made this intention clear—an intention to convert the

collective action for overtime pay to an action on behalf only

of the named plaintiffs—before the statute of limitations

expired, he would not have lost 18 of his 21 plaintiffs. Anderson

v. Montgomery Ward & Co., 852 F.2d 1008, 1018 (7th Cir.

1988); Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1134-

35 (5th Cir. 1984); Morelock v. NCR Corp., 586 F.2d 1096,

1103 (5th Cir. 1978).

Anderson says that “the requirement that plaintiffs in a

representative action file a written consent with the district

court applies only to those parties who are not named as

plaintiffs in the complaint.” Id. at 1018-19. This statement, to

which Mr. Rossiello clings with the strength of desperation,

is the purest dictum. Anderson was a joint action—that is, a

suit that is not a collective action because, although there are

multiple plaintiffs, there is no claim for relief on behalf of
6 No. 03-3624

persons similarly situated to the named plaintiffs. The

character of the suit in Anderson is apparent from the court’s

citation to Allen v. Atlantic Richfield Co., supra, and from the

fact that the plaintiffs in Anderson had “hired a lawyer to file

a complaint on their behalf” and had thus “clearly indicated

their consent to suit,” while in the present case the plaintiffs’

consent to take their chances with lawyer Rossiello is

precisely what is at issue. This suit was captioned as a

representative action when first filed and, for reasons

known only to Rossiello, was never converted to a joint

action. So the 18 are out.

As for the overtime claims by the three plaintiffs for

whom written consents were filed, and which are therefore

properly before us, the contention is that the district court

should have ruled as a matter of law that they were not

seamen within the meaning of the seaman’s exemption from

the FLSA, 29 U.S.C. § 213(b)(6). The exemption is

terse—“any employee employed as a seaman”—and has

given rise to an extensive case law which contains however no

case much like this one, no crisp formula, and little discussion

of the purpose of the exemption. See, e.g., Owens v. SeaRiver

Maritime, Inc., 272 F.3d 698 (5th Cir. 2001); Pacific Merchant

Shipping Ass’n v. Aubry, 918 F.2d 1409, 1412 (9th Cir. 1990);

Knudsen v. Lee & Simmons, Inc., 163 F.2d 95 (2d Cir. 1947);

Sternberg Dredging Co. v. Walling, 158 F.2d 678 (8th Cir. 1947);

Walling v. Bay State Dredging & Contracting Co., 149 F.2d 346

(1st Cir. 1945). Only two points emerge with any clarity

from the cases: the employee must do maritime-type work

on a ship that is within the admiralty jurisdiction; and decisions interpreting the term “seaman” in other statutes do not

necessarily control its meaning in the FLSA. Martin v. Bedell,

955 F.2d 1029, 1035-36 (5th Cir. 1992); Donovan v. Nekton, Inc.,

703 F.2d 1148, 1150-51 (9th Cir. 1983) (per curiam); cf. Warner

v. Goltra, 293 U.S. 155, 162 (1934) (Cardozo, J.).
No. 03-3624 7

The exemption recognizes that at sea, with a normal life

impossible, working more than 40 hours a week is an appropriate work norm, as distinct from the situation in most

ordinary employments, where, because 40 hours is the norm,

requiring the employer to pay time and a half for overtime

encourages him to spread the work by hiring enough workers

to minimize the need and resulting expense of overtime.

Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1543-44 (7th Cir.

1987); Donovan v. Crisostomo, 689 F.2d 869, 876 (9th Cir.

1982); Mitchell v. Brandtjen & Kluge, Inc., 228 F.2d 291, 292-

94 (1st Cir. 1955). Given the infrequency and limited duration

of the Showboat’s cruises, the application of the exemption

has far less urgency than in a case involving extended voyages. Yet it would be odd to think that the crew of a ferry or

a tugboat or a sightseeing boat contains no seamen because

such boats don’t go on overnight voyages. 

A consideration in probing the outer boundaries of the

exemption is that admiralty law guarantees employment

benefits to seamen that are not guaranteed by law to other

workers. The doctrine of maintenance and cure obligates

employers to provide room, board, and medical care to a

seaman injured on the job, even if through no fault of the

employer, Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438,

440-41 (2001); Greenwell v. Aztar Indiana Gaming Corp., 268

F.3d 486, 489 (7th Cir. 2001); Wills v. Amerada Hess Corp., 379

F.3d 32, 52 (2d Cir. 2004), while the Jones Act extends the

uniquely liberal employer-liability standard of the Federal

Employers Liability Act to seamen. Miles v. Apex Marine

Corp., 498 U.S. 19, 23-24 (1990); Greenwell v. Aztar Indiana

Gaming Corp., supra, 268 F.3d at 489; Wills v. Amerada Hess

Corp., supra, 379 F.3d at 47 n. 8. The plaintiffs in our case do

not “need” these special employment benefits because the

conditions of employment in a floating but rarely sailing casino are remote from those of ordinary sea duty. But it is
8 No. 03-3624

conceded that they have them anyway, and maybe they

should have to take the bitter with the sweet.

Or maybe not; for as we noted earlier, the classification of

an employee as a seaman under one statute or admiralty

doctrine does not necessarily require that he be so classified

under another one which might have a different purpose.

But when persons employed on a ship, even so atypical a

one as an Indiana gambling boat, are classified as seamen

for purposes of entitlement to the special employment benefits to which seamen, including therefore these plaintiffs, are

entitled, a presumption arises that they are seamen under

the FLSA as well. Recognition of this presumption has the

incidental but not trivial advantage of making law a little

simpler.

The presumption could probably be rebutted in a case in

which a person employed on a ship was engaged in activities that had no maritime tincture whatever; an example

would be a waiter employed on a cruise ship to serve meals

to the passengers at regular hours. He might be exposed to

some of the hazards inherent in working on a ship, and this

might justify classifying him as a seaman for Jones Act and

maintenance-and-cure purposes, since both the statute and

the admiralty doctrine concern shipboard injuries. Dole v.

Petroleum Treaters, Inc., 876 F.2d 518, 522-23 (5th Cir. 1989).

But in all other respects his working conditions might be

identical to those of waiters in conventional landlocked restaurants. The presumption is not rebuttable on this ground

in the present case, however, because none of the plaintiffs

is a croupier, cashier, bouncer, dealer, waiter, or entertainer;

all are (or so the jury could reasonably find) members of the

ship’s operating crew. See Martin v. Bedell, 955 F.2d at 1035-

36 (5th Cir. 1992); Worthington v. Icicle Seafoods, Inc., 774 F.2d

349, 353 (9th Cir. 1984), rev’d on other grounds, 475 U.S. 709

(1986); Walling v. Keansburg Steamboat Co., 162 F.2d 405, 406-
No. 03-3624 9

08 (3d Cir. 1947). Recall the division of responsibilities

between the defendant and Harrah’s.

The plaintiffs remind us that the Department of Labor

defines “seaman” as one who performs “service which is

rendered primarily as an aid in the operation of [a] vessel as

a means of transportation, provided he performs no substantial amount of work of a different character.” 29 C.F.R.

§ 783.31. But this just means that the employee must be a

(more or less) full-time member of the marine crew, that is,

the crew that is responsible for operating the ship. A ship is

a means of transportation, and even when it is docked the

marine crew is responsible for its safe and efficient operation and maintenance—for keeping it afloat and clean,

scraping the barnacles off its hull, keeping the engines in

repair, preventing fires, etc. All this is maritime work, and

the members of the ship’s crew who do it, thus including

the plaintiffs in this case as the jury found, are seamen even

during the intervals in which the ship is moored. Walling v.

Keansburg Steamboat Co., supra, 162 F.2d at 406-08. We are

disinclined to specify as a matter of law a minimum percentage of time, over some specified interval (per week? per

year?), at which a ship must be at sea to trigger the seaman

exemption. We have not been given enough information to

enable us to do this, and we are worried that unless the

percentage were set very low shipowners would be unable

to predict whether their maritime workers would be

classified as seamen for FLSA purposes. That would make

it difficult for the employer to figure his costs.

We can ask the question this way: do the plaintiffs spend

their time performing duties that are necessary to the operation of the Showboat because it is a ship or because it is a

casino? See Donovan v. Nekton, Inc., supra, 703 F.2d at 1150-

51. A blackjack dealer does not become a seaman by virtue

of leaving his job at Harrah’s land-based casino and taking
10 No. 03-3624

a job at Harrah’s riverboat casino, but likewise a helmsman

does not cease to be a seaman because he transfers to a

casino boat that spends most of its time moored. It was for

the jury to decide whether the three plaintiffs whose

overtime claims survived to trial were more like the helmsman than like the blackjack dealer. 

The plaintiffs urge a number of errors in trial rulings.

None is substantial, and there is no need to burden the

opinion with a discussion of them.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-6-04