Interference Violations: Automatic First Down of MSHA Enforcement
Mine operators have become all too familiar with MSHA investigations of miners’ discrimination complaints under Section 105(c) of the Mine Act. Such complaints have a low evidentiary threshold for temporary reinstatement of a miner whose employment has been terminated, as well as potentially significant civil penalty assessments. However, MSHA has another subtle enforcement weapon under Section 105(c) that it is using with increasing frequency – unlawful interference claims.
Much like interference penalties in football, the conduct in an interference claim prosecuted by MSHA can be overt and obvious or subtle and inconspicuous. The penalties for either one can be equally severe.
Interference claims differ from typical miners’ discrimination complaints in that they involve allegations of conduct, both direct and subtle, constituting interference with a miner’s ability to exercise protected rights under the Mine Act, without the need to prove adverse employment action; whereas, discrimination claims require a showing of adverse action. As a result, mine operators are facing unprecedented civil penalty assessments for a much broader range of conduct without any evidence of discriminatory intent. It is important for mine operators to educate their management and human resources teams of this trend to prevent or mitigate such expanded enforcement.
Section 105(c)(1) of the Mine Act provides that “[n]o person shall discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of any miner” because the miner has made a complaint under the act. 30 U.S.C. § 815(c)(1) (emphasis added). Section 105(c)(2) permits a miner or his or her representative to file a discrimination complaint with the secretary if he or she believes “that he has been discharged, interfered with, or otherwise discriminated against” in violation of the act. 30 U.S.C. § 815(c)(2). The legislative history relating to Section 105(c) indicates that Congress intended to provide miners with additional protection against subtle acts of interference, beyond overt discrimination or disparate treatment.
In UMWA ex rel. Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2108 (Aug. 2014) (Jordan & Nakamura, Cmm’rs.), vacated & remanded, __ Fed. Appx. __, 2015 WL 4647997 (Aug. 2015), Commissioners Jordan and Nakamura devised a test setting forth the elements to establish an interference claim. According to the commissioners, an interference violation is established if:
(1) a person’s action can be reasonably viewed, from the perspective of members of the protected class and under the totality of the circumstances, as tending to interfere with the exercise of protected rights, and
(2) the person fails to justify the action with a legitimate and substantial reason whose importance outweighs the harm caused to the exercise of protected rights.
Some examples of interference may include:
1. Bonus incentive plans tied to safety complaints and accident reporting (essentially creating a disincentive to report);
2. Requiring miners to report safety conditions to management that were reported to MSHA;
3. Promises made regarding job benefits or duties;
4. Threats of reprisal (both direct and subtle), i.e. coercive or threatening conversations, interrogation, or verbal or physical harassment;
5. Openly accusing a miner of contacting MSHA or making anonymous complaints creating perceived stigma among co-workers or fear of reprisal;
6. Perceived verbal threats made in a joking manner;
7. Encouraging others to put pressure on a miner who reported safety complaints and to build a case against that miner for subsequent disciplinary action; and
8. Certain confidentiality policies.
Please note that this list is not exhaustive of the types of conduct that can give rise to an interference claim. Each claim is evaluated by commission judges on a case-by-case basis.
The protection from interference is intended to promote and encourage miners to report safety complaints and to exercise the rights granted to them under the Mine Act. The commission has long recognized that any actions by an operator that serve to dissuade a miner from exercising his or her rights under the act or that place a miner in the untenable position of choosing between exercising his or her rights or obtaining or losing some benefit or being penalized is unlawful interference. Any conduct that has a negative or chilling effect on a miner’s ability to make reports of unsafe conditions to MSHA, refuse to work in unsafe conditions, testify in MSHA proceedings or exercise the “walk around” rights of a miner’s representative, may constitute unlawful interference. More importantly, whether or not an operator’s actions are deemed to interfere with a miner’s rights will be viewed from the perspective of the miners (the protected class) based upon the totality of the circumstances. Even if the operator’s actions did not actually prevent a miner from exercising his or her rights, such actions may be deemed interference if a reasonable miner was swayed to forego exercising his or her rights based on some perceived benefit, promise or fear of reprisal. The fact that the miner’s individual perception plays such an important role in establishing an ’interference violation creates broad risk and should give operators pause when evaluating whether it has a “legitimate and substantial reason” for such action.
It is worth noting that the operator’s defense of a “legitimate and substantial reason” will be difficult to establish in most instances because commission judges are likely to defer to the miner’s rights over an operator’s stated justification. Operators must carefully consider its actions under this framework to avoid the subtle snare of interference and proper education and training of management and human resources personnel is paramount to avoiding these claims. Operators must develop effective safety, anti-discrimination and anti-harassment policies and consistently enforce them. A miner’s complaints must be thoroughly investigated and responsive action taken to resolve potential issues in their infancy. With thoughtful planning and evaluation of company culture, employment policies and processes and responsive action, mine operators have the opportunity to mitigate the risk posed by interference claims as an MSHA enforcement tool.