Why remote MSHA enforcement is serious

During the pandemic, the Mine Safety & Health Administration (MSHA) has communicated its willingness to give mine operators some leeway in meeting some compliance obligations.

The agency has been amenable to giving operators additional time to meet training and certification deadlines that are impeded by social distancing and scheduling complications. Similarly, MSHA is aware that some operations are not running at full capacity and have limitations with respect to manpower and working areas.

Consequently, MSHA invited operators to alert the agency about production changes that warrant a reduced number of inspectors proportional “with the mine’s continuing operations.”

Relying on video tech

Still, the agency has been true to its spring 2020 declaration that, pandemic or not, it would continue to perform essential functions. Inspections and investigations have continued unabated. To keep its enforcement priorities moving forward, the agency – in some situations – has employed technology to remotely break the backlog on some enforcement procedures that would otherwise be done in person.

This has been particularly true with respect to special investigations. MSHA conducts these investigations in two circumstances: pursuant to section 110(c) of the Mine Act, when supervisors or managers are alleged to have knowingly violated a safety standard; or pursuant to section 105(c) of the Mine Act, when a mine operator is alleged to have retaliated against a miner for engaging in protected safety activity.

This type of investigation usually involves comprehensive document requests and detailed witness interviews conducted at the mine site. During the pandemic, the agency has increasingly relied on video conferencing technology to conduct these investigations remotely.

Mine operators and management personnel have generally been receptive to the use of this technology. Often, they see it as an easier, less intrusive means of handling an awkward, stressful process.

Nonetheless, it is critical that personnel treat these remote investigations with the same seriousness and preparation that would be accorded an in-person investigation.

Special approach

Given the implications of a negative finding in these types of investigations, most operators usually have in-house or outside counsel to help them determine whether to participate in an investigation – and, if so, to assist with agency document requests and to caution personnel regarding the potential pitfalls of an investigation video interview. Those pitfalls generally revolve around witness preparation, interview techniques and video conference procedures.

With respect to witness preparation, it is critical that supervisory witnesses review the pertinent documents MSHA has been provided and will likely address during the interview. Video conferencing platforms enable the investigator to present the document to the witness, so personnel should not be surprised when they come up.

A disciplined approach to respond to interview questions is also important. Witnesses must focus on each question and answer just that question. This can be difficult in a video conference when distractions at the witness’ location intervene.

Consequently, it’s crucial that the witness be situated in a quiet place with a good video connection and clear sound. Participation in a special investigation interview is voluntary, so if the conditions are not optimal for perfect communication, respectfully decline to participate until such conditions are available.

It’s also important for the parties to agree to the ground rules for these types of video conferencing interviews before getting started. There should be agreement that the interview is not being recorded and an understanding of who is on the call.

Mine operators and their agents should never be lulled by the seemingly less burdensome nature of a video conference investigation. Preparation and careful attention are just as critical to effectively navigate this enforcement process.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.

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