Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/619545
AGGREGATES MANAGER | January 2016 40 More claims are being filed under §105(c) of the Mine Act. What does it mean and, more importantly, what's an employer to do? Claims on the Rise Jessica M. Jurasko is an attorney in Jackson Kelly PLLC's Pittsburgh, Pa., office, practicing in the Occupational Safety and Health Practice Group and the Coal and Oil and Gas Industry Groups. She can be reached at 412-434-8812 or jmjurasko@jacksonkelly.com. Discrimination D iscrimination complaints un- der the Mine Act have become more commonplace in recent years, with the number of filed complaints increasing for the past several years. The expectation is that this trend will continue for quite some time. According to a 2015 news release from the Mine Safety and Health Administration (MSHA), the agency filed 49 discrimination complaints in 2014, more than in any previous year, and the sec- ond highest number of temporary reinstate- ment actions (45) were filed. This past year brought more of the same, but the final num- bers for 2015 had not been tallied at the time this article was written. But what does all of this mean for mine operators and employers? Section 105(c) of the Mine Act states that a miner cannot be discharged, discriminated against, or interfered with in the exercise of his or her statutory rights because such min- er engaged in protected activity, which in- cludes reporting an alleged health or safety violation or refusing to work in unsafe condi- tions. Mine operators should note that this protection extends to contractors' employees as well. To prevail, the miner must show that 1) the miner engaged in protected ac- tivity; 2) the miner suffered an adverse em- ployment action; and 3) there was a "nexus" or causal connection between the protected activity and the adverse employment action. In most circumstances, courts analyze more closely the third element, determining if the employer discriminated against the miner because of the protected activity or whether it had a legitimate business purpose for the action. Many employers do not realize that the Mine Act affords miners a rare remedy not available in other retaliation actions (such as those involving race, gender, age, etc.) in the form of temporary reinstatement. MSHA will file for temporary reinstatement on behalf of the miner if the agency believes the miner has a valid § 105(c) claim pending a final order on the complaint itself. The bar for rein- statement is quite low: the scope of the hear- ing on an application for reinstatement is lim- ited to the judge's determination of whether the complainant's claim for discrimination is "frivolously brought." It does not require a pri- ma facie showing of discrimination but, rath- er, asks if the claim "appears to have merit." The reinstatement can be awarded even if the employer shows that it had a legitimate business reason for taking any adverse ac- tion against the miner. At the conclusion of a temporary reinstatement proceeding, a mine operator is typically required to reinstate the miner to his or her former position or the par- ties may agree on economic reinstatement. Reinstatement lasts through the conclusion of the discrimination hearing unless an agree- ment is reached between the parties. And, byJessica M. Jurasko ROCKLAW