These efforts to encourage and pursue whistleblower allegations and discrimination complaints by miners appear to be working. Discrimination complaints nearly tripled from 12 in 2008 to 34 in 2012. Temporary reinstatement actions multiplied 15 times in that period.

Of course, safety-conscious mine operators want miners to identify hazards and raise legitimate safety concerns for everyone’s sake. But, unfortunately, many operators have experienced abuses of the whistleblower system when a miner files a meritless hazard or discrimination complaint. The process can be especially expensive due to temporary reinstatement, which provides regular pay to miners during litigation of their complaints if the complaints are not “frivolous.” Also costly are MSHA allegations of high negligence, reckless disregard, or even willful conduct that can emerge when a complaint alleges an actual hazard not properly handled by the mine operator.

In this context, understanding, preparing for, and properly handling safety complaints and potential allegations of safety discrimination are critical for mine operators to minimize financial and enforcement risks.

Understanding What MSHA Needs to Prove its Case
Section 105(c) of the Mine Act states that “[n]o person shall discharge or in any 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…of an alleged danger or safety or health violation…” 30 U.S.C. § 815(c)(1). This covers miners, miners’ representatives and even job applicants. It also protects a range of activities, including lodging a safety complaint with the government, the mine operator or a miners’ representative; exercising Mine Act rights; and refusing to work in dangerous conditions.

MSHA investigates every safety complaint it receives and can file a Federal Mine Safety and Health Review Commission complaint on behalf of the miner. Even if MSHA finds insufficient cause to file a claim for the miner, the miner still can prosecute the case on his own. Whoever pursues it, the miner can receive temporary reinstatement — regular pay — while the case is pending, if he can merely show that his discrimination claim was “not frivolously brought.”

One of the greatest challenges of a discrimination case is that MSHA can win without direct a proof of discriminatory intent. After showing the miner engaged in protected activity (such as a safety complaint), MSHA satisfies its initial burden simply by demonstrating that the adverse action was motivated “in any part” by the protected activity. MSHA does not need direct evidence, such as a recording of a supervisor promising to “get even” with the miner for complaining about safety. Rather, MSHA can rely on indirect, circumstantial evidence.

As a result, it’s important to understand the kinds of circumstantial evidence that can establish discrimination. Were the adverse action and protected activity close in time? Did the operator know about the protected activity (e.g., that the miner made the complaint)? Did the operator demonstrate hostility toward the protected activity? Did the operator treat this miner differently than others in similar circumstances or differently from its normal practice? A “yes” to any of these questions can complicate a defense.

If MSHA can show direct or indirect evidence that the adverse action was motivated by the protected activity, the burden of proof in a review commission case shifts to the mine operator. The operator would have to show that the miner did not engage in any protected activity or that the protected activity did not motivate the action at all. The mine operator can still prevail through an affirmative defense if it sufficiently shows that it would have acted the same way, based only on the unprotected activity, even if it had multiple motivations for acting.

Strategies for Handling Complaints and Claims
There are a number of best practices for handling safety complaints and discipline:

  • Have a procedure for investigating safety complaints by a qualified person, train supervisors in the procedure, and demand that all management personnel follow the procedure.
  • Act immediately to protect personnel from any risks identified by a complaint, even if the risks have not yet been confirmed.
  • Keep the miner informed about investigation efforts and results. Actions and words should demonstrate that the safety complaint was taken seriously.
  • When evaluating a safety complaint and when disciplining a miner, have a trustworthy witness present. If the miner raises discrimination or retaliation allegations, emphasize the legitimate reasons for the evaluation or disciplinary action.
  • Follow a regular process for discipline and implement it fairly and even-handedly. Avoid treating people differently for similar offenses.
  • Document everything — infractions, corrections and disciplinary actions — as they happen so the record reinforces the proper purpose of all discipline and counseling.
  • When MSHA investigates, engage counsel early to conduct a privileged investigation, gather facts, prepare management, participate in interviews, and develop a strategy to litigate and/or negotiate settlement.

Above all, prepare in advance to properly handle safety complaints and discipline, while respecting legitimate protected activities. With good procedures and a well-trained team, one will have the best chance of advancing safety while avoiding costly discrimination actions.

Avi Meyerstein is a shareholder in the Washington, D.C., region office of Jackson Lewis P.C. He focuses on workplace safety and health matters. He counsels and represents clients on MSHA, OSHA, CSB, and other safety agency compliance, investigation and enforcement actions.