Here Are The Best Strategies A Mine Operator Can Institute To Reduce The Risks.
By Linda Otaigbe
Some aggregate mine operators are feeling the pinch that has been created by the steady rise of section 105(c) MSHA discrimination complaints. The complaints have been on the rise since 2010, in response to MSHA’s decision to aggressively educate miners on their section 105 (c) rights through a variety of initiatives.
Also contributing to the rise, is MSHA’s decision to dedicate resources to thoroughly investigating such claims. Section 105(c) is a provision of the Mine Act that protects miners who file or make a complaint of an alleged danger or safety or health violation, participate in a proceeding under the Mine Act, give statements to MSHA inspectors during inspections and investigations, and refuse to work in dangerous conditions. Section 105(c) covers miners, miners’ representatives and even job applicants. It protects miners from discriminatory acts (also known as “adverse actions”).
How Does the Discrimination Complaint System Work?
In order to effectively pursue a section 105(c) discrimination complaint, miners must first file a discrimination complaint with MSHA, who then decides, after an investigation, if it will pursue the discrimination complaint on behalf of the miner.
MSHA can and will file a request for temporary reinstatement before an investigation is complete if it thinks, preliminarily, that a complaint was not “frivolously brought.” Temporary reinstatement puts the miner back into his old position with regular pay while MSHA completes its investigation. If requested, a Federal Mine Safety and Health Review Commission (FMSHRC) ALJ will hold an expedited temporary reinstatement proceeding.
If determined that the complaint is valid, the ALJ will grant temporary reinstatement. Likewise, if it was brought frivolously, the ALJ will deny temporary reinstatement. If, after a miner gets temporary reinstatement, MSHA decides that the case has no merit and decides not to file a case on the merits, then temporary reinstatement will be dissolved by the ALJ.
On the other hand, if MSHA believes that the miner made a valid section 105(c) claim, it will file the complaint with FMSHRC on behalf of the miner. MSHA does not pursue every discrimination complaint that it receives, but the number of discrimination complaints MSHA is pursuing is on the rise. This is illustrated by MSHA’s announcement earlier this year that, in 2014, it filed the most discrimination complaints with FMSHRC (49 total) than it had ever done in previous years. Even if MSHA decides not to pursue the complaint, the miner can still pursue the complaint on his own by representing himself or hiring a plaintiff’s attorney.
Whether the claim is brought by MSHA or the miner, the ALJ will evaluate the following: (1) whether the miner was engaged in an activity protected under section 105(c); (2) whether the miner suffered an adverse employment action; and (3) whether the adverse employment action complained of was motivated in any part by the miner’s protected activity. The burden of proving discrimination falls on MSHA, the miner’s attorney, or the miner himself, if he is pro se. The mine operator has to show that any adverse action taken against the miner was not motivated by a protected activity.
Unjustified Discrimination Complaints Are a Common Problem
Unfortunately, as with other types of whistleblower claims, there are many instances where meritless claims are filed by disgruntled miners. These miners often file claims against their (former) employers because they feel wronged by the operator for an issue that may or may not be related to safety.
For instance, a mine operator may decide to terminate the employment of a miner engaged in poor safety practices or who violated the operator’s work rules. These decisions may, unfortunately, trigger a frivolous complaint since filing is relatively simple. These complaints can be expensive to defend against, even if the mine operator prevails in litigation.
For example, the mine operator may be required to temporarily reinstate the miner or MSHA may aggressively pursue the miner’s allegations that the mine operator failed to address an actual hazard and issue citations and penalties.
So, what are the best strategies a mine operator can institute to reduce the risks of section 105(c) discrimination claims?
Ten Ways to Limit Section 105(c) Discrimination Complaints
- Have a written anti-retaliation policy in place and communicate it to all miners. It should define what is considered retaliation under the Mine Act (and any applicable state laws).
- Since miners usually complain internally before they file an external complaint with MSHA, ensure miners have a well-publicized avenue for expressing their complaints without fear of retaliation.
- Institute policies where safety complaints are immediately investigated by a qualified person, and, if warranted, institute prompt remedial measures to prevent any future reoccurrences. Document all actions taken to investigate as well as any remedial measures taken.
- Let the miner know what is going on with investigating his safety complaint and the final result of the investigation. Your actions and words should demonstrate that the safety complaint is being taken seriously.
- Train first level supervisors and managers. As violations can stem from both their action, inaction and failure to recognize a situation that may have legal consequences, it is important to train them to recognize what is considered a “protected activity” under the Mine Act and what they can and can’t do when a miner complains.
- Have a legitimate business reason for dismissing or disciplining a miner and have backup documents to prove the reason.
- Treat all miners with fairness, dignity and respect during employment and during the termination process. Avoid treating miners differently for similar offenses.
- Document everything, such as performance problems, including verbal warnings and performance-related counseling. These items can help defend a complaint and provide proof as to the reason for a termination, demotion or decision not to promote.
- Before making a final decision to discharge a miner, especially if section 105(c) implications are involved, determine if the action will be viewed by the miner as unfair, a surprise, or inconsistent with past situations.
- Seek legal counsel as early as possible if MSHA initiates an investigation into a discrimination complaint. Engaging counsel early allows them to conduct a privileged investigation and provide MSHA with beneficial information while MSHA is still investigating the complaint.
We have found that taking the precautions outlined above, coupled with early participation in the investigation by counsel, greatly reduces the chance that MSHA will go forward with any proceeding. Given the extraordinarily low threshold for granting temporary reinstatement, you are far better off taking an aggressive approach early, than you are sitting back and waiting to see what MSHA will do.