Costly Claims


January 1, 2013

Operators may pay the price for MSHA’s new emphasis on discrimination enforcement.


by Michelle Witter


Citing the Upper Big Branch disaster, MSHA’s Joseph Main announced that the agency intends to continue to place an increased emphasis on the investigation of miners’ rights cases. MSHA issued a press release in early November 2012 touting an increase in the number of temporary reinstatement cases filed against operators. According to the press release, “The U.S. Department of Labor’s Mine Safety and Health Administration filed 39 requests during fiscal year 2012, more than in any other year, with the Federal Mine Safety and Health Review Commission for temporary reinstatements on behalf of miners who submitted complaints of discrimination in the form of a suspension, layoff, discharge, or other adverse action.”

Main testified in front of Congress in March 2012 and told legislators that MSHA has “stepped up the use of our authority under the Mine Act to request temporary reinstatement for miners who claim unlawful discharge while we fully investigate the case. From October 2007 to September 2009, the Department of Labor pursued a total of nine temporary reinstatement cases. By comparison, from October 2009, the month I took office, to September 2011, [the Department of Labor] sought 48 temporary reinstatements, an increase of more than 500 percent. For all types of Mine Act discrimination cases during that time period, the number of cases that [the Department of Labor] pursued rose by over 100 percent.”

Operators should take note of MSHA’s announced intentions. In situations involving terminations or lay-offs, MSHA generally seeks temporary reinstatement of a miner who complains that his or her termination or lay-off was discriminatorily motivated. Under the Mine Act, MSHA is able to seek temporary reinstatement, even if the agency has not finished its investigation into the merits of the miner’s complaint. Because operators seldom want a terminated miner back at the mine, for either employee morale or safety reasons, temporary reinstatement most often means that a miner is economically reinstated. Economic reinstatement requires an operator to continue to pay the miner-complainant the salary, benefits, and bonuses to which the miner would have been entitled had the miner’s employment with the operator not been severed.

While an operator may choose to challenge MSHA’s decision to seek temporary reinstatement, this is often a futile effort. MSHA must prove only that the miner’s complaint is “not frivolously brought.” While in the past the “not frivolously brought” standard has been interpreted to mean that the miner’s claim “appears to have merit,” a 2009 Commission decision, Secretary of Labor o/b/o Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1091 (2009), could be read to expand the interpretation of “not frivolously brought” to mean that the standard is met if the case could have merit. Since it is difficult to exclude any scenario from the realm of possibility, the operator is at a disadvantage from the outset.

This disadvantage is further solidified by the fact that many judges will approach a temporary reinstatement hearing by assuming that uncorroborated, undocumented statements made by the complaining miner are true. This is because a judge is not allowed to resolve credibility issues at a temporary reinstatement hearing. Further, in recent temporary reinstatement proceedings, the Secretary has asserted that the CAM Mining decision precludes the operator from presenting any evidence regarding its affirmative defenses. Counsel for mine operators disagrees with the Secretary’s assertion; nevertheless, this is the stance taken by the Secretary.

MSHA’s increased emphasis on discrimination enforcement, combined with the low legal hurdle that a miner is required to scale in order to receive temporary reinstatement, may significantly increase the number of discrimination complaints and temporary reinstatements. This is particularly true if MSHA becomes more lax in its “gatekeeper” function, which would seem to be a logical outcome of the top-down edict to make such cases a priority. Additionally, if MSHA is successful in obtaining temporary reinstatement for more miners, discrimination cases could increase even more because of the “grapevine effect.”

An operator’s monetary outlay when faced with temporarily reinstating a miner is likely to be significant, even if an ALJ determines, ultimately, that the miner’s claims are without merit. It is not unusual for an operator that has been ordered to economically reinstate a miner to pay more than a year’s worth of wages, benefits, and bonuses to a miner before the case is eventually resolved, and that is in addition to the cost of defending itself against a meritless claim. To add insult to injury, even if a miner’s discrimination complaint is meritless, the operator cannot recoup the funds paid out as part of the economic reinstatement.

If there is any consolation for operators, it comes in the form of two decisions issued, respectively, by the Sixth and Seventh Circuit Court of Appeals [Vulcan Construction Materials, L.P., v. FMSHRC, Docket No. 11-2860 (7th Cir. Oct. 25, 2012); North Fork Coal Corp. v. Gray, Docket Nos. 11-3398/3684 (6th Cir. Aug. 14, 2012)]. Both courts determined that a miner’s right to temporary reinstatement ends when the Secretary decides not to pursue the case further. Previously, the Commission had held that a temporary reinstatement order could not be dissolved, even if the Secretary was no longer involved in the case and the miner continued to pursue the case independently.

These decisions may be cold comfort, however, for an operator that finds itself facing temporary reinstatement of a miner it knows was terminated for legitimate and non-discriminatory reasons. While the vast majority of operators actively support miner involvement in promoting a safer work environment, the current regulatory environment lacks any sort of effective mechanism to weed out meritless claims against innocent operators in the early stages of investigation and litigation. Consequently, MSHA’s increased emphasis on seeking temporary reinstatement may leave a responsible, safety-conscious operator with a bad taste in its mouth and a large hole in its pocketbook.


Michelle Witter is an associate in Jackson Kelly PLLC’s Denver office, where she works with the firm’s Occupational Safety and Health Practice Group. She can be reached at 303-390-0036 or via email at

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