Coal Age

DEC 2016

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64 www.coalage.com November-December 2016 legally speaking Where Employment Law Meets MSHA: Practical Tips to Avoid Whistleblower Claims by donna pryor All operators are fa- miliar with the rights afforded to all min- ers under the Mine Act. For example, all miners (hourly or sal- aried) have the right (1) to file or make a complaint to the agency, the operator or a miner's representative; (2) to participate in proceedings under the act such as testify- ing in a proceeding; (3) to withdraw them- selves from the mine for not having the re- quired health and safety training; and (4) refuse to work in unsafe conditions. These acts are considered "protected activity" under the Mine Act. Miners who feel they have been discriminated against for en- gaging in this activity can file a complaint under Section 105(c) of the act. Complaints filed under Section 105(c) under the Mine Act are on the increase. Oftentimes, when a miner (hourly or sala- ried) is terminated they look to claims that might be filed in response. A claim filed under Section 105(c) is particularly oner- ous if the miner has been terminated be- cause of its unique provision allowing the miner to seek "temporary reinstatement," which could stay in place until the matter is fully adjudicated or settled. The Mine Safety and Health Administra- tion (MSHA) will investigate all complaints filed under 105(c) no matter how frivolous they might seem. In order to make a finding of discrimination, MSHA must find that the miner engaged in protected activity, suf- fered an adverse action (such as demotion, termination or discipline), and that there was a nexus or connection between the ad- verse action and the protected activity. Recent cases demonstrate the gravity of these matters. In Hamilton v. American Mining & Tunneling, the complainant was terminated after drilling near booted, un- shot holes that were loaded with explo- sives. The complainant filed a complaint with MSHA alleging he was terminated for engaging in protected activity (making safety complaints and refusing to follow the unsafe directions of his supervisor). The complainant was economically rein- stated (paid full salary without reporting to work) the entire time the case was pending — more than six months. After a two-day hearing, an administrative law judge ruled that the complainant established a prima facie case of discrimination, but the oper- ator successfully rebutted that case, show- ing its decision was in no way motivated by the protected activity. This decision is significant as it enforces an operator's right to abide by safety rules and policies and discipline employees accordingly. But certainly not all judges rule in the operator's favor and there are many where a miner is temporarily reinstated while the case is pending and ultimately awarded backpay and their job back by the court. Litigating these matters is a risky proposi- tion with the added burden of legal costs, disruption to the mine, a negative effect on workforce morale and a potential epidem- ic of additional 105(c) filings from other miners that have been terminated. After all, why not file? Miners who file 105(c) complaints have never been prosecuted for not telling the truth, so a disgruntled miner has literally nothing to lose. An operator's best defense to a 105(c) complaint occurs well before the com- plaint is filed. The focus should be on a solid human resources (HR) and safety practice that is uniformly applied. The fol- lowing are some tips that all HR and safety people should know. 1) Record all discipline (verbal or writ- ten) in your files. Operators are often too lenient when it comes to issuing discipline or recording verbal counseling. Those re- cords, including witness statements if ap- plicable, can be very helpful when MSHA investigates a 105(c) complaint. For ex- ample, if an employee was terminated for too many absences and was coached numerous times on his or her attendance records, a written record would be used as evidence to support the termination. 2) Treat everyone the same. Disparate treatment, in the employment context, re- fers to when a person is treated differently from others. This is something an MSHA investigator will look for when deciding whether there is a finding of discrimina- tion. For example, if you gave employee A one day off without pay for failing to chock his tires two times in a row, and you only gave employee B a verbal warning af- ter making the same two infractions, that would be disparate treatment. 3) Be attentive and responsive to min- ers' concerns, such as safety concerns. When miners make a safety complaint, operators must address those concerns, investigate and respond to the concerns. Operators should address those concerns with another employee present and can even involve the miner making the com- plaint to ensure they understand the re- sults of the investigation and how the mat- ter is being handled. If there is no hazard, explain that to them. The results of this investigation should be recorded. 4) Write all of your documents/corre- spondence as though they will be printed in the New York Times. It's easy to feel com- fortable writing your colleagues an email, but down the road all of your emails are "discoverable" and could come to light if a 105(c) matter needs to be litigated. 5) When terminating an employee or issuing discipline, be clear and profession- al. How an operator treats an employee during a termination might be the differ- ence between having a claim filed against the company or not. Even the most sub- standard employee deserves respect and dignity in the termination process. 6) Consider a consensus termination policy. It is better to have a group involved in the decision-making process around a termination, unless the term is clear cut (ie., job abandonment). Operators need not be wary of enforcing their safety and HR policies so long as they are enforced uniformly and professionally. Donna Pryor is a partner in the Den- ver, Colorado, office of Husch Blackwell. She can be reached at donna.pryor@ huschblackwell.com.

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