Recent Successes: MSHA 105(c) Discrimination Actions

February 2020

In just the last year this firm litigated and successfully defended two Section 105(c) complaints filed under the federal Mine Safety and Health Act (the “Mine Act”). (30 USC § 801, et seq.) This section prohibits mine operators from firing, demoting, or in any way discriminating against a miner for invoking his or her statutory safety rights under the Mine Act. Miner complaints filed under Section 105(c) receive top priority from the Mine Safety and Health Administration (“MSHA”) and are subject to special investigation procedures. Section 105(c) proceedings can last months or years, and are invariably costly and time consuming for operators to defend.

MSHA requires miners alleging discrimination under Section 105(c) to file a single form - MSHA Form 2000-124, Discrimination Report – in order to initiate a Section 105(c) investigation. Miner complaints filed on these forms are often short and simple; one of the cases this firm defended recently was initiated by a single hand-written paragraph. MSHA has intentionally made this tool accessible to miners, and the allegations required to launch an investigation need not be detailed, or even believable. For example, another complaint handled by this firm entailed a miner’s allegation that he was fired after the operator discovered that the miner was participating in an undercover MSHA investigation. MSHA knew that no such “undercover investigation” was underway and that the miner’s claim was false, and yet MSHA initiated an investigation nonetheless.

Section 105(c) investigations proceed in two phases. The first phase, the “temporary reinstatement” phase, is focused on whether the miner’s discrimination complaint was “not frivolously brought”. Specifically, MSHA evaluates whether the complaining miner engaged in “protected activity” (i.e., actions related to health and safety under the Mine Act), and whether the miner thereafter suffered adverse employment action that was motivated in any part by the protected activity. This standard is extraordinarily deferential to the miner, such that MSHA will move to reinstate a miner if there is some causal relationship between the miner’s protected activity and the miner’s termination. At this phase, the operator can present only a limited defense, focused on whether the miner actually engaged in protected activity or suffered a resulting adverse employment action. Congress’ intent in establishing such a low bar for temporary reinstatement was to restore the miner to his or her job while MSHA investigates the deeper merits of the complaint.

Accordingly, the second phase a Section 105(c) proceeding is the “merits” phase. In this phase of the proceeding, the operator is entitled to present a full defense, including evidence related to any of several “affirmative defenses”, which include showing that (1) the discharge was also motivated by the miner’s unprotected activity and (2) the operator would have taken the adverse employment action in any event for the unprotected activities alone. At the end of this process, a Federal Mine Safety and Health Commission (“Commission”) judge will determine whether the miner’s complaint was meritorious or not. If the former, the Commission judge will order the miner permanently reinstated and will set penalties against the operator, which may include backpay to the miner for any period that the miner was out of work before being reinstated. If the latter, the operator is then free to terminate the miner’s employment if it so chooses.

While risk of receiving a Section 105(c) complaint can never be eliminated, operators can lessen that risk by regularly training mine officers, managers, and supervisors on this important section of the Mine Act specifically, by strictly prohibiting any discriminatory or punitive response to a miner that raises safety concerns and by instituting protocols for receiving, responding to, and closing out safety complaints and concerns raised by miners.

Brad Johnson is a Partner at Harrison, Temblador, Hungerford & Johnson LLP in Sacramento, California.

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