Why 2014 is the year of the workers’ voice

MSHA has recently expressed concern about fatalities in the aggregates industry and about employees taking risks by not focusing on potential consequences. The agency has emphasized that fundamental procedures, such as locking out and blocking equipment, are indispensable to preventing fatal releases of energy.

It has further stressed the importance of operator reinforcement of safe procedures with regular training and monitoring of how miners are doing their work. There also appears to be tacit recognition that sometimes employees are not the best judge of their own competence on new assignments. MSHA is encouraging operators to provide and verify task training anytime there is a question.

With that said, MSHA is also urging miners to insist on safe workplaces, and is emphasizing what miners can do to identify, correct and report unsafe conditions or actions. MSHA believes uninhibited communications between employees and companies can promote beneficial safety adjustments.

MSHA stresses that miners who exercise safety rights, lodge complaints, talk to inspectors, or refuse work they consider unsafe are legally protected from retaliation. MSHA wants employees to know they can appoint safety representatives and those representatives are entitled to accompany MSHA inspectors with no loss of pay.

Enforcement of miners’ rights
MSHA is pursuing a “Voice in the Workplace” initiative to encourage miners to participate in the safety oversight and enforcement process. Integral to this is MSHA’s concentration on energetically protecting miners from discrimination related to safety activity, including criticisms by miners or suggestions for improvement of company equipment or procedures. This protection also extends to independent contractors, company managers and supervisors, and even applicants for employment.

Most companies are confident of their commitment and the emphasis they place on safety. They feel they treat employees fairly and are convinced they would not discriminate against anyone trying to be safe. However, most operators who get embroiled in miner discrimination cases never see them coming.

A typical case might involve a miner doing something that warrants discipline or discharge. It could be something like violation of an MSHA regulation. The company may feel pre-discipline review procedures are adequate to ensure a legally sustainable discharge. Days later, however, the miner might be complaining to MSHA about the discharge being unfair. How much of a concern is this?

Investigation and prosecution
In a discharge case, MSHA will initiate and complete a preliminary investigation within 15 days – not to prove or disprove discrimination, but simply to ascertain the miner’s allegations are potentially supportable and therefore “not frivolous.” If the complaint is found not frivolous, MSHA will require temporary reinstatement of the miner.

This job reinstatement will continue if MSHA remains committed to the case – something MSHA decides after it does a full investigation, which it has 90 days to complete. Reinstatement can last for years, and if economic reinstatement is negotiated in lieu of actual reinstatement, then pay without work can go on for years.

If, after full investigation, MSHA finds what it considers unlawful discrimination, a Labor Department attorney will prosecute on the miner’s behalf, and will also seek a civil penalty on MSHA’s behalf.

What does it take for MSHA to find discrimination? 1) Something bad, like discharge, happened to the miner; 2) the miner had verifiable safety activity; 3) the bad thing is believed by MSHA to have been a reaction in whole or in part to the safety activity. Often a connection will be presumed by proximity in time and the burden will shift to the operator to disprove a connection.

If MSHA declines to prosecute on the miner’s behalf, the miner can still pursue the case without the government. If the miner prevails, the miner’s legal fees will have to be paid by the company, with back pay and any other damages the miner can prove, such as medical expenses for lack of employer medical insurance, job-hunting expenses and any other expenses the miner can relate to being out of work.

Without reinstatement, potentially recoverable damages magnify. MSHA has tried to extend temporary reinstatement to cases where it does not find discrimination; however two U.S. Courts of Appeals have rejected that position.

Cases on the rise
Last year, MSHA filed more discrimination complaints than ever before. Temporary reinstatement actions are also way up since 2012. Producers can expect MSHA to continue emphasis on educating miners on their rights, encouraging them to take an active role in safety and pursuing cases to protect miners’ rights. Vigorous prosecution of cases suggests MSHA will resolve doubts in favor of pursuing the miner’s case in court.

This enforcement is part of what MSHA’s Office for Special Enforcement and Investigations is focused on in fiscal year 2014, which the office has dubbed the year of the “Workers’ Voice.”

In the mining industry, employers must be very clear in applying discipline, ensuring actions are fully justified, and giving no suggestion of motives that might be misinterpreted by MSHA.

Take note
MSHA stresses that miners who exercise safety rights, lodge complaints, talk to inspectors, or refuse work they consider unsafe are legally protected from retaliation.

Legal editor Michael T. Heenan is an attorney at Ogletree, Deakins, Nash, Smoak & Stewart, one of the nation’s largest labor and safety law firms. He can be reached at michael.heenan@odnss.com.