Investigations and prosecutions

By and |  November 12, 2013

An MSHA inspector insists on talking to employees privately. Supervisors are also questioned. An MSHA representative asks to meet with all employees on the night shift. A team of inspectors interviews employees and supervisors individually regarding an anonymous hazard complaint. A letter gives notice of an investigation into a mine employee charge of discrimination. MSHA inspectors request company documents while making an inquiry.

These are ways MSHA investigations begin. Some investigations are announced – accident and discrimination investigations, for example. Some are initiated more subtly and may initially appear to be routine inspections.

The first notice of many investigations, notably special investigations, is when an investigator arrives at the mine. Too often, companies fail to distinguish special investigations from inspections. Important legal rights are at stake. When a mine operator notices MSHA activities are out of the ordinary, the mine may be experiencing something other than a routine inspection.

Inspections
In a routine inspection, inspectors look for physical evidence of safety or health violations. To prove such violations in court, MSHA will rely on the testimony of inspectors, along with their photographs, measurements and laboratory analyses of potential health hazards.

Typically, inspectors will begin with a brief conference with the mine representative and then will have discussions during the inspection. A representative of miners may also be included. At closeout, there will be another conference. The process rarely involves interviews of miners.

Investigations
Investigations are a higher level of enforcement. Invariably, they pose a risk of elevated prosecutions against individuals, as well as the company. In contrast to an inspection, an investigation focuses on words spoken or written by company representatives or miners. MSHA will use the words of company witnesses to support whatever actions are decided upon after the investigation is complete.

Except for accident investigations, investigators rarely go into the mine. Rather, they ask for company documents, including documents not ordinarily within MSHA’s domain. They conduct interviews. Often, they ask employees to sign written statements.

■ Accident investigations: In an accident investigation, inspectors conducting the investigation examine the scene carefully looking for causal violations. Then, they conduct interviews with employees. They take detailed notes. They review their notes and findings with higher-level officials to determine what violations to cite and to evaluate the seriousness of the violations. Serious sanctions often follow, particularly if the company’s precautions and preventative actions are not fully understood by the investigating inspectors.
■ Special investigations: If unwarrantable failure violations are charged after an accident or other serious incident, or during a routine inspection, a special investigation is highly likely. MSHA cites operators for unwarrantable failure to comply when they believe there is high negligence and aggravated conduct. Particularly serious are violations that seem to have been ignored, or were found by MSHA as a result of a hazard complaint.
■ Discrimination investigations: Discrimination investigations begin with a letter sent by MSHA to one or more managers or supervisors. They inform the company that a case has been filed and that an MSHA investigator will be contacting the company. The investigation is to determine if discrimination occurred and whether the Labor Department Solicitor with the Federal Mine Safety and Health Review Commission should file a complaint-seeking redress.

MSHA discretion

MSHA always investigates fatal accidents. Initiation of other investigations is within agency discretion – less so with investigations related to charges by miners that they have been subjected to unlawful discrimination because of them having made safety complaints to the company or MSHA, or otherwise engaged in protected safety activity.

In 2012, MSHA investigated the highest number of discrimination cases in a decade. Former employees requested immediate temporary reinstatement in 50 percent of these cases. MSHA filed successful petitions for reinstatement with the commission in 40 percent of the cases in which reinstatement was requested. The ultimate goal of the government is to obtain full restitution of work status and all back pay, benefits and any other damages related to employment termination.

Regarding enforcement, numbers vary year to year, but MSHA successfully prosecutes more than 100 civil penalty prosecutions against individual supervisors, managers and owners of corporations during many years. The number was down substantially in 2012 – probably because of the increased agency emphasis on discrimination cases. A few enforcement cases are criminally prosecuted in federal courts, but most cases are civil penalty prosecutions against individuals.

Importance of investigation response

Understanding what is involved in an investigation enables a company to take necessary precautions – typically through counsel. The attorney helps witnesses understand the process and potential consequences. More importantly, the attorney works to ensure a fair and accurate investigation – one that properly includes all information critical to the interests of the company and individuals involved.

Investigators are experienced. Company employees are not. Individuals being interviewed may not understand questions fully or may fail to adequately articulate important points. They may feel compelled to sign a statement that is not entirely accurate. An expert attorney helps ensure clear communications with ample opportunity to edit and supplement any document MSHA requests be signed.

Take note
When a mine operator notices MSHA activities are out of the ordinary, the mine may be experiencing something other than a routine inspection.

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.

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