Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)

Fisher & Phillips LLP
ATTORNEYS AT LAW

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Discrimination Complaints
Under the Mine Act:
Six Steps to Help Prevent Complaints
and Protect Your Company
Presented by:

Matthew R. Korn
(803) 255-0000
mkorn@laborlawyers.com
www.workplacesafetyandhealthlaw.com
www.laborlawyers.com
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Louisville
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Mine Act Discrimination Complaints
Overview
• Why do I need to know about
discrimination?
• What constitutes discrimination
under the Mine Act?
• When will a miner be temporarily
reinstated and for how long?
• How does the discrimination
complaint process work?
• What should I do to avoid a
discrimination compliant?
ATTORNEYS AT LAW
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www.laborlawyers.com ● Phone (803) 255-0000

MSHA’s Focus Has Changed

• Joe Main – Current Assistant
Secretary of Labor for MSHA
– United Mine Workers of America - 1974
– Focus on Enforcement and
Discrimination
– Upper Big Branch

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Significant Increase in Discrimination
Complaints
80

• Main’s MSHA tripled the
number of temporary
reinstatement requests
over a three year period

70

71

70

60

50
40

• Nearly double the number
of discrimination
complaints filed over the
same period

39

30

20

22

10
Temporary
Reinstatement
Requests

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Discrimination
Complaints

FY 20072009
FY 20102012

Are More Mine Operators Discriminating
Against Miners?
• MSHA focus on issue
• Efforts to educate miners about their
rights under the Mine Act
• Low standard for temporary
reinstatement

• Numbers reported are filings, not
actual results
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What other laws protect our workers?
• OSH Act Whistleblower Protections
– Refusal to work in hazardous conditions:
• Reasonable belief that worker faces death or serious injury
• Worker has tried to get employer to correct condition
• Situation is so urgent that worker does not have time to call OSHA

• EEOC Retaliation Charges (1997-2012)
– Title VII – Increased from 16,394 (20.3%) to 31,208 (31.4%)
– All Statutes – Increased from 18,198 (22.6%) to 37,836 (38.1%)
• Monetary benefits (not including monetary benefits obtained through litigation):
– $41.7 million in 1997
– $177.4 million in 2012

• Workers’ Compensation Retaliation
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The Basics of a Discrimination Case

Protected
Activity

Discriminatory
Conduct

Complaint
Filed

MSHA
Investigation

Request for
Temporary
Reinstatement

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Miner
Reinstated

Discrimination
Hearing

It’s Not Always Obvious . . .
• You know that you cannot fire a Miner for talking to
MSHA or complaining about safety hazards
• What about more difficult situations?
–
–
–
–

Misconduct
Late/No Show, No Call
Insubordination
Failure to follow safety procedures

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What are a Miner’s Rights under the Act?
• File or make a complaint of an alleged danger
or safety or health violation
– Internal or external

• Refusal to work in unsafe conditions
• Participate in proceedings under the Mine Act
– Witness
– Discriminatee

• Other statutory rights
– Paid as miner’s representative while
accompanying MSHA inspector
– Paid while receiving required training

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What is Discriminatory Conduct?
• Discriminatory Acts may include:
–
–
–
–
–
–
–
–
–

Discharge or termination
Layoff
Demotion
Refusal of employment
Reduction in benefits, vacation, bonus, or
rate of pay
Change in hours of work
Threats of reprisal
Transfer to a less desirable position with
lower pay
Interference with a miner’s right to complain
to MSHA or participate in proceedings under
the Mine Act

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Causal Connection Between Exercise of
Rights and Discriminatory Conduct

• Discriminatory act “motivated in
any part” by statutory activity
–
–
–
–

Knowledge of activity
Hostility or animus toward activity
Coincidence in time
Disparate treatment

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How do I defend my Company?

• No protected activity occurred
• Adverse action not motivated
by protected activity
• If discriminatory, operator also
motivated by unprotected
activities and would have taken
action for other reason alone
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Miner Complaint and MSHA Investigation
• What happens if a miner files a
complaint with MSHA?
– Must be filed within 60 days
• Investigation
– Begins within 15 days
– Request for Temporary Reinstatement Immediately

• Written findings within 90 days
• Request for Temporary Reinstatement
or Discrimination Complaint
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Temporary Reinstatement Proceeding

• If Miner is discharged or terminated he
may request temporary reinstatement
• “Not frivolously brought” standard
• Almost always granted
• Difficult situation

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Discrimination Complaint and Hearing
• MSHA will present witnesses regarding
alleged discriminatory conduct
• Operator has opportunity to present
witnesses and evidence as well
• Judge will make credibility
determinations based on witness
demeanor and other evidence
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When “Don’t Discriminate” is Not Enough!
• How do Operators protect their
Company from discrimination
complaints?
• Limiting costs and exposure is
important
• Prevention can cost less than
defense
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#1 - Draft an Anti-Retaliation Policy
• Draft policy
–
–
–
–

Definition of retaliation
Specific examples
Complaint procedure
Disciplinary action

• Hotline for complaints
• Distribute policy to employees
– Electronic or hard copy
– Signed acknowledgement
– Meeting to discuss
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#2 - Train Supervisors and Managers
• Supervisors and Managers are
agents of the operator
• Trained about retaliation
• How to properly react
• Prepared to answer miners’
questions about policy
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#3 - Educate and Assure your Miners
• Education is important – don’t
avoid the issue
• Assure miners that your
company takes health and
safety seriously
• Goal is to prevent external
complaints
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#4 - Investigate Complaints & Remedy Issues

• If you receive an internal
complaint:
– Fully investigate complaint
– Interview all witnesses and
document their stories
– Take appropriate disciplinary action
if complaint is confirmed, consistent
with written anti-retaliation policy

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#5 - The 3 D’s – document, document, document

• Document internal complaints
and corrective actions

• Document safety meetings
• Document performance
problems, policy violations, etc.

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#6 - Consult Legal Counsel

• Before taking an adverse
employment action
• As soon as employee informs
you that he filed complaint
• Any time you have a question
regarding discrimination

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Conclusions
• Our main goal is to reduce the
likelihood of a discrimination
complaint being filed
• We can accomplish this goal by
educating our employees and
management team about
discrimination
• “An ounce of prevention is worth
a pound of cure”
~ Benjamin Franklin
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Additional Resources

• MSHA Guide to Miners’ Rights and
Responsibilities (Revised 2010)
– New Version - 2013

• “Voices in the Workplace”
– 40 minute (cheesy) video
– Great for meeting to educate miners

• MSHA Inspector or Field Office

• State Agency or Industry Groups

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Join me next month!
Wednesday, January 15, 2014
2:00 PM (EST)
This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for
general information purposes only, and you are urged to consult counsel concerning your own situation and any specific legal questions you may have.

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Louisville
Solutions at Work®


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Any Questions?
Thank You
Presented by:

Matthew R. Korn
(803) 255-0000
mkorn@laborlawyers.com
www.workplacesafetyandhealthlaw.com
This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for
general information purposes only, and you are urged to consult counsel concerning your own situation and any specific legal questions you may have.

ATTORNEYS AT LAW

Louisville
Solutions at Work®


Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)

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