In his statement, Main said:

To reflect our commitment to worker voice, we are using all our available tools to protect miners from discrimination when they make complaints about dangerous conditions, or exercise other rights provided to them under the Mine Act. The fear of losing a job—even temporarily until a discrimination claim can be litigated—makes a huge impact on a breadwinner for a working family, and can force a miner to choose the care of his or her family over other safety concerns.

In the agency’s attempt to promote the use of this provision of the Act, they have also stepped up the use of the authority under the Mine Act to request temporary reinstatement for miners who claim unlawful discharge “while [they] fully investigate the case.” In fact, temporary reinstatement carries on long after the case is fully investigated by MSHA and has been held by the Federal Mine Safety and Health Commission to run until the final Commission decision on the merits of the miner’s underlying complaint. This essentially means that if MSHA makes an initial finding of no discrimination, yet the miner decides to pursue the discrimination case on his own (an option under the Act), the miner will continue to be paid his/her normal rate of pay until a final decision is rendered by an Administrative Law Judge—obviously a very costly proposition for an operator seeking to challenge a baseless discrimination claim.

Indeed, the number of cases in which a temporary reinstatement is sought are on a dramatic increase. From October 2007 to September 2009, the Department of Labor pursued a total of nine temporary reinstatement cases. By comparison, from October 2009, to September 2011, the Department of Labor sought 48 temporary reinstatements, an increase of more than 500%. In fact, Main boasts that “For all types of Mine Act discrimination cases during that time period, the number of cases that DoL pursued rose by over 100%.”

Section 105(c)(1) of the Mine Act provides in part:

No person shall discharge or in any other manner discriminate against…or otherwise interfere with the exercise of the statutory rights of any miner…because such miner…has filed or made a complaint under or related to this Act, including a complaint notifying the operator or the operator’s agent, or the representative of the miners…of an alleged danger or safety or health violation….


30 U.S.C. § 815(c)(1). Following the investigation of a miner’s allegations of discrimination, the Secretary can seek temporary reinstatement of a miner if she “finds that such complaint was not frivolously brought.” 30 U.S.C. § 815(c)(2). This standard is among the lowest burdens of proof that courts allow and hearings on the issue are strictly limited. 29 C.F.R. § 2700.45(d) provides:

a hearing on an application for temporary reinstatement is limited to a determination as to whether the miner’s complaint was frivolously brought. The burden of proof shall be upon the Secretary to establish that the complaint was not frivolously brought….

Because the Mine Act does not define “not frivolously brought,” courts have been left to define the standard on their own. Courts and the Commission have equated the “not frivolously brought” standard contained in section 105(c)(2) of the Mine Act with the “reasonable cause to believe standard.” Jim Walter Resources, Inc. v. Federal Mine Safety and Health Review Commission, 920 F.2d 738, 747 (11th Cir. 1990). It has also been equated with “not insubstantial” and “reasonable cause to believe.” Id. This standard is an incredibly low hurdle for the Secretary to meet. And though it is not impossible to successfully challenge a claim for temporary reinstatement, it is rarely done as the standard weighs in such favor to the miner:

In at least one recent case, even though MSHA had already made a finding of no discrimination on a miner’s overall complaint and decided to not represent the miner in the discrimination action, the Secretary of Labor continued to represent the miner in the temporary reinstatement hearing. That the agency would make a finding of no discrimination and then provide free legal counsel to a miner in order to obtain temporary reinstatement, flies in the face of logic. And of course, if a miner obtains temporary reinstatement even if MSHA makes a finding of no discrimination, the miner has every incentive to move forward with the case but has no reason to expidite the proceedings, regardless of merit, due to the windfall he/she is experiencing as a result of the temporary reinstatement.

The temporary reinstatement process is obviously very costly to operators—between litigating the matter in court and actually paying a miner to sit home until a claim is fully litigated. When seeing how strongly this process leans in favor of the miner, and how heavily the agency is promoting the use of this portion of the Act, an operator should take great care to document all discipline and termination of employees. Also important to consider are the common circumstantial indicia of discriminatory intent considered by the courts: (1) the operator’s knowledge of the protected activity; (2) the operator’s hostility or animus toward the protected activity; (3) coincidence in time between the protected activity and the adverse action; and (4) disparate treatment of the complainant (in other words, are all employees treated equally?). Taking these factors into account may help operators make prudent decisions when making routine disciplinary decision, yet trying to avoid baseless discrimination claims.

Pryor is an associate with Patton Boggs LLP. She can be reached at 303-894-6145 or at Savit is a partner in the Denver office of Patton Boggs LLP. He can be reached at 303-894-6117 or at