Reminder: Miner Reinstatement

MSHA continues to aggressively seek temporary reinstatement of miners asserting discrimination following a safety complaint.

Under section 105(c) of the Mine Act, a miner cannot be discharged, discriminated against or interfered with in the exercise of statutory rights because he or she has engaged in a protected activity such as filing a complaint alleging a health or safety violation, or refusing to work under unsafe or unhealthy conditions. The Mine Act requires a miner to file a complaint with MSHA within 60 days after the alleged violation occurs. (Mine Act Section 105(c)(2).)

If MSHA finds that a miner’s discrimination complaint is “not frivolously brought,” then MSHA, at the request of the miner, will ask the Federal Mine Safety and Health Review Commission (the “Commission”) to order immediate reinstatement for the miner until the case is heard on the merits. Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990).) MSHA filed 46 temporary reinstatement requests and 34 discrimination cases during fiscal year 2012, more than in any other year. MSHA issued press releases on this issue in November 2012, December 2012, January 2013, and two in May 2013.

In Secretary of Labor, Mine Safety & Health (Rodriguez) v. C.R. Meyer and Sons Company (2013 WL 2286133 [Federal Mine Safety & Health Review Commission Apr. 17, 2013]), the Commission outlined the legal standards governing whether a miner is entitled to temporary reinstatement. In order to be entitled to temporary reinstatement, a miner must demonstrate “substantial evidence” that the miner engaged in protected activity (such as voicing safety concerns), and a nexus between the miner’s activity and the alleged discrimination. (Rodriguez, supra.)

To establish the nexus, the Commission has identified four indicators of discriminatory intent: (1) hostility or animus toward the protected activity; (2) knowledge of the protected activity; (3) coincidence in time between the protected activity and the adverse action; and (4) disparate treatment of the miner. (Citing Sec'y of Labor on behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009); Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983).) The Courts have recognized that the miner’s legal burden in this regard is “relatively insubstantial.” (Citing Sec'y of Labor on behalf of Ward v. Argus Energy WV, LLC, 2012 WL 4026641, (Aug. 2012) citing Schaub v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th Cir. 2001).)

Operators should be aware that a miner is entitled to full back pay so long as he or she makes a “reasonable and good faith effort” to mitigate damages and find new employment after being improperly terminated. (Minshall v. McGraw Hill Broad. Co. (2003) 323 F.3d 1273, 1287.) The burden is on the operator to show that a miner did not make a good faith effort to find new employment.

In summary, (1) MSHA is focusing more intensely on miner discrimination; (2) the standards governing temporary reinstatement of a miner that has filed a discrimination complaint overwhelmingly favor the miner, not the operator; and (3) failure to reinstate can carry a heavy cost in time and financial resources. Operators should have procedures in place to ensure that safety complaints are addressed appropriately, and that legitimate miner terminations cannot be characterized as discriminatory under the standards outlined above.

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