Pit & Quarry, July 2009

BY MICHAEL T HEENAN Law Costly employee complaints T his article is about safety discrimination cases not taxes But Legal tip Text I recently read a U S Tax Court case concerning taxability of a 120000 settlement paid by a mine company to resolve a Federal Mine Safety and Health Act discrimination claim and related tort claims I was reminded of not only how costly such claims can be to employers but also how often employers are unprepared for workplace issues that lead to miners complaints Case before the court The case before the tax court was one where a three year employee was terminated from mine employment because he was in the companys words unable to communicate with fellow employees According to the courts decision however the events that preceded the discharge were 1 a physical assault on the employee by his supervisor 2 a report by the employee to the company that the supervisor had committed an unsafe working practice and 3 a subsequent assault by the supervisor on the employee for having put the supervisor on report If the facts are true this would be an extreme case but cases do not have to be extreme for an aggrieved employee to have recourse against the employer The following is a review of some of the more significant miners rights and how they may be enforced The law Two critical protections for miners under the Mine Act are those that empower miners to make safety complaints and to be protected from adverse employment action The law authorizes complaints and protects employees who make them Under section 103 g of the act a miner or representative shall have a right to obtain an immediate inspection by giving notice to the Mine Safety Health Administration MSHA of violation or danger While there are a few technical requirements that must be met before MSHA is mandated by law to make the inspection as a practical matter MSHA responds to all complaints Miners are not limited to making safety complaints to MSHA They are protected if they complain to their employer or union or anyone else within MSHAs jurisdiction Section 105 c of the Act states No person shall discharge or in any way discriminate against or otherwise interfere with the exercise of the statutory rights of any miner representative of miners or applicant for employment because such individual has filed or made a complaint including a complaint notifying the operator or the operators agent of an alleged danger or safety or health violation Protection also extends to medical evaluations testifying and all other statutory rights If a miner does anything related to safety or health there is a good chance his or her activity is protected Typical claims Quite unlike the tax court case a more usual situation would be one where an employee complains or refuses work for safety reasons and a company supervisor or manager disagrees If the employee seems to be unreasonable or becomes obstreperous the employer may be prompted to discharge the Two critical protections for miners under the Mine Act are those that empower miners to make safety complaints and to be protected from adverse employment action employee This often leads to claims which employers are surprised to find sustainable Other cases arise when employers suspect complaints are made for ulterior motives not for genuine safety reasons Effects of complaints If an employee is disciplined discharged or retaliated against in any way the law provides for all of the following A miner need only have a reasonable belief that there is or was a violation or hazard in making a complaint or refusing work The same holds true if a miner decides to complain to MSHA A miner or applicant for employment can complain to MSHA that he has been discriminated against and MSHA will conduct an investigation If MSHA determines there is an apparent basis for the complaint MSHAs lawyers will represent the complainant If the complainant was discharged MSHA will seek immediate reinstatement of the miner before the case is ever heard If MSHA does not take the case the complainant is entitled to proceed independently with private counsel If the complainant is successful in court or in reaching a pre trial settlement with the employer the complain Continued on page 39 34 PIT QUARRY July 2009 www pitandquarry com