Who’s responsible?

Suppose someone orders a miner to do something the miner says is unsafe.

What happens if the miner refuses and is then disciplined or discharged? Perhaps there was neither a safety hazard nor a violation. Or, maybe there was a violation and the person directing the miner knows or should know the order was unlawful.

MSHA regularly receives such complaints. There will be questions as to who is responsible for what. MSHA will begin an investigation immediately to determine what infractions may have occurred, and, if so, who is responsible.

The Federal Mine Safety and Health Act makes “operators” responsible for compliance. An operator is an owner or lessee, “or other person who operates, controls or supervises” a mine. “Other person” could be an individual, a corporation or another business entity.

By law, independent contractors at mines are also operators. In rare instances, successors to operators may bear responsibility, possibly due to insolvency of the predecessor.

Not limited to operators

The Federal Mine Safety and Health Act does not exclusively limit enforcement to operators. It extends to other people as well.

Most significantly, the term “person” rather than “operator” is used in the anti-discrimination provisions of the law (“No person shall discharge or in any manner discriminate …”) and the agent liability provisions (“… any director, officer or agent of such corporation who knowing authorized, ordered or carried out such violation …”). “Agent” means any person charged with responsibility for operation of all or a part of a mine, or supervision of the miners.

Both the anti-discrimination provisions and the agent liability provisions invoke MSHA’s investigation and enforcement procedures. Occasionally, an individual person can be drawn into both types of investigations based on a single set of facts.
Anti-discrimination

Any miner who believes he or she was subjected to discriminatory treatment due to safety activity may complain to MSHA, and the agency will begin an investigation immediately.

Typically, MSHA sends letters to individuals alleged to have caused the discrimination. This can disconcert recipients, but MSHA looks primarily to the operator for resolution. Typically, enforcement will be initiated against the operator and not individuals to whom MSHA sent letters.

Investigations can lead to court cases against one or more parties alleged to have discriminated against a miner, a representative of miners or an applicant for employment. A court can reverse virtually any discipline or administrative action or refusal. Notably, if a miner has been discharged from employment, permanent reinstatement with back pay and benefits may be ordered. Also, civil penalties may be imposed because wrongful discrimination is a violation of law.

MSHA will make an expedited inquiry at the outset to determine whether the discharged miner has adequately made out a complaint. If so, the solicitor of labor will petition for immediate temporary reinstatement. Judges without credibility determinations summarily grant such petitions. The reinstatement will continue until the case is finally resolved, and that can take years.

Investigations and prosecution

MSHA regularly investigates violations of mandatory standards charged against corporate operators to determine if any agent of the corporation “knowingly authorized, ordered, or carried out such violation.” This happens most often after unwarrantable failure violations are charged against a corporate operator.

Occasionally, investigations into discrimination complaints unearth evidence suggesting to MSHA there were “knowing” or “willful” violations. If the operator is a corporation, MSHA may initiate enforcement not only against the operator, but also against any agent of the operator that MSHA finds culpable.

The Federal Mine Safety and Health Act states this: “Whenever a corporate operator violates a mandatory health or safety standard or knowingly violates or fails or refuses to comply with any order issued under this Act [except an order in a decision in a discrimination case] any director, officer or agent of such corporation who knowingly authorized, ordered or carried out such violation, failure or refusal shall be subject to the same civil penalties, fines and imprisonment.”

Sanctions

Operators are responsible for actions of their agents. If the operator is a corporation, an individual agent can also be held responsible. If the agent knowingly or willfully ordered a miner to commit a violation, the agent can be liable.

Agents can also create liability for themselves and their employers by retaliating against a miner who refused or complained about such an order.

Operators of mines and independent contractors performing services or construction at mines must pay civil money penalties for all violations, including discrimination violations. MSHA specially assesses discrimination violations in amounts potentially up to $70,000 per violation. If a contractor operator and a mine operator are both implicated, both might be held responsible. MSHA may also assess penalties against a corporate agent who knowingly or willfully violated the law.

In extreme cases, both the operator and the agent may be criminally prosecuted.

Take note

If a contractor operator and a mine operator are both implicated, both might be held responsible.