August 5, 2014
This article has been contributed by Max L. Corley, III.
Mine operators across the United States are facing an unprecedented number of miners’ discrimination complaints filed under Section 105(c) of the Mine Act. The rise in discrimination complaints can be partly attributed to job reductions in this tough economic climate; the Mine Safety and Health Administration’s (MSHA) renewed focus on educating miners of their rights under Section 105(c); and MSHA’s devotion of the resources to thoroughly investigate such claims. A miner who files a discrimination complaint with MSHA after losing his or her job has a low burden of proof at the initial stages of the proceeding, which often results in temporary reinstatement or economic reinstatement of the miner pending the results of litigation. At the initial stages, the miner merely has to show that his complaint was “not frivolously brought” to trigger the miner operator’s burden of temporary reinstatement pursuant to the statute. This low evidentiary threshold is tantamount to putting the proverbial cart before the horse as the miner is granted relief, even if only temporary, before actually proving the merits of his or her claims.
This process can impose significant economic and practical burdens on mine operators. For instance, a mine operator may decide to terminate the employment of an unsafe employee or one who engaged in misconduct only to have that employee file a discrimination complaint with MSHA. The process for filing such a complaint is very simple, and the complaint does not need to contain detailed facts or allegations. Rather, the complaint can be as simple as stating the miner’s belief that he or she was discriminated against in the termination of employment. Once the complaint is filed, MSHA’s duty to investigate is triggered and the liability risks to the mine operator become real. As a result, a mine operator could be required to temporarily reinstate a disgruntled or unsafe employee, thereby putting the company’s operations and other employees at risk. This is just one example, however, and not representative of all miners bringing such claims, but it demonstrates a real risk nonetheless.
There are active steps that mine operators can take to protect their operations from frivolous or unwarranted miners’ discrimination complaints filed under Section 105(c). First and foremost, mine operators must develop and implement a well-crafted performance and disciplinary policy for misconduct. Most operators have such policies, but fail to enforce them or do so inconsistently. Another mistake is the failure to adequately document any performance issues or disciplinary action taken. Such failures undermine an operator’s defense to a discrimination complaint and make it easier for MSHA to conclude that the complaint was “not frivolously brought” during the preliminary investigation.
The company should train its management personnel to actively enforce company safety policies and to take disciplinary action where appropriate. Management must apply discipline evenly and consistently to all employees to prevail against a claim of “disparate” treatment of employees for similar infractions. Such discipline must be adequately documented and witnessed to preserve the company’s defense that the miner’s employment was terminated for “legitimate business reasons” and not because the miner engaged in “protected activity,” such as making safety complaints.
Secondly, the operator should develop policies and procedures for adequately investigating and addressing miners’ safety-related complaints. The miners should be advised of these procedures and encouraged to use them. The company should promote a culture of open dialogue without repercussions on safety matters. Adequate documentation of safety-related complaints and the action taken by the company to address them can be instrumental in showing an administrative law judge that the company took safety complaints seriously and that such complaints were not the reason for a miner’s discharge.
Third, the mine operator should conduct exit interviews, if possible, with employees who have voluntarily separated from the company and document their reasons for the separation. There have been instances where employees have voluntarily quit their jobs for personal reasons unrelated to work only to later file a discrimination complaint against the operator. However, the operator had no documentation of the reasons for the employee’s separation, and the issue became one of credibility of the witnesses in a “he said, she said” situation.
The operator should also adequately document the reasons for discharging an employee, such as for misconduct or violations of company safety policies. If the company is enforcing and documenting disciplinary actions, the discharge should be supported by the disciplinary action documentation for the employee. Such consistency in the administration of company procedures will bolster the operator’s credibility in court.
In addition, the operator should take steps to preserve all documents even remotely pertinent to a miner’s complaint or the company’s defenses. For instance, the company should preserve all training records and materials for the employee, pertinent pre-shift, on-shift and equipment examination records for the time period covered by the miner’s complaint, disciplinary records, employment and wage documentation, attendance records, and company notes and witness statements, among others. The company should identify all pertinent fact witnesses and advise them of their rights should they be contacted by an investigator before counsel’s involvement. Bear in mind, however, that the company cannot interfere with the investigation, but it can request that the investigator conduct the investigation in a manner that is not disruptive to the company’s operations.
The mine operator also should involve outside counsel at the first notice from MSHA that a discrimination complaint has been filed. Involving counsel promptly can ensure that the attorney-client privilege is protected for communications and that key facts, testimony, and evidence are preserved. Counsel can also work with the MSHA investigator to ensure that witness interviews and any document requests are handled efficiently and in a non-disruptive manner. At the same time, counsel can foster cooperation and compliance with MSHA without compromising the company’s rights.
Lastly, mine operators should promptly and objectively evaluate a miner’s complaint, with assistance from counsel, to determine if it has any merit. The company can then make a reasoned decision whether or not to settle or litigate the claim. Companies may fight a miner’s complaint out of principle or a mistaken belief in the merits of their defenses only to settle the claim after significant litigation. The prompt evaluation and settlement of legitimate claims will limit the company’s loss and may make sense from a business perspective. Illegitimate or weak claims should be litigated aggressively to discourage frivolous complaints in the future.
Although discrimination complaints cannot be prevented entirely based on the deference given to employees by the enforcement scheme of Section 105, the steps outlined above can help mine operators to strengthen viable defenses, preserve evidence, and discourage frivolous complaints. The benefits of a proactive approach will lessen a mine operator’s expenditure of time, money and resources and its long-term liability risk.
Max L. Corley, III is a partner in Dinsmore & Shohl’s Charleston, W.Va., office. He can be reached at 304-357-9945 or firstname.lastname@example.org.