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Coal Miners Discrimination / Retaliation Claims Under W.Va. Code 22A-1-22 et seq: Miners Reporting Safety Concerns

March 25, 2017

Mining is a hazardous occupation. Although companies in our state have instituted safety programs and gone beyond the extreme dangers and risks that once plagued the industry, there continue to be abuses.

Safety is or should be the number one priority in the mining industry. Explosions, toxic fumes, methane and coal dust explosions, collisions, fires, falling objects and cave-ins are some of the hazards that miners are routinely exposed to and must be aware of at all times. If a hazard is present, miners are encouraged to report them as well as to report any other violations that affect miner safety. Miners who do take the initiative to protect themselves and others by reporting such violations should not have to be concerned about retaliation from their employers.

What Constitutes Discrimination?

The West Virginia legislature codified miner protections from being terminated or having adverse employment measures taken against them in W.Va Code § A-1-22 that deals with discrimination and retaliation in this context. Retaliatory measures or reprisals may not be taken against the following mine employees under this code section:

 Miners or mining representatives who report health or safety violations

 Mine employees who have testified or who are about to testify in any proceeding resulting from the administration or enforcement of the statute

 Any mine employee who accompanied state mine inspectors to point out health and safety hazards or violations

Mining companies are required to have comprehensive training at least once per year where miners are trained in health and safety, how to recognize hazards and the proper reporting procedures. Mine operators do take offense at employees who report violations. While terminating workers who make such reports may be too obvious, although this does occur, operators undertake other discriminatory measures including:

 Suspension

 Changes in work hours

 Change of work location

 Loss of or reduction in pay

 Withholding compensation

 Reduction of or loss of vacation

 Reduction in overtime opportunities and bonuses

 Aggravated verbal intimidation

According to the law, the verbal intimidation must be not only “…in response to or based upon an employee’s initiation of a safety grievance…” but be “…of such a nature as to create a chilling effect on miners contemplating the filing of safety grievances..” This usually suggests that a mine operator, or agent of one, who has been reported will have repeatedly used threatening language against the miner or even his family so as to dissuade others from reporting hazards or violations that they observe on the job.

Remedies for Aggrieved Miners

If a miner feels he has been discriminated against in any of the above ways, he can take his case to the Mine Safety and Health Administration (MHSA) within 30-days of the discriminatory act. This includes miners who have not been compensated by an operator for loss of income due to posting of a withdrawal order. These are orders that cease further operations because of a safety hazard.

After filing of the complaint, a public hearing may be held if requested by any of the parties. Written notice by certified mail of the hearing must be given at least 5 days before it is held to the charged party, usually the mine operator. Within 45-days after the hearing, the board is to issue findings of fact. If violations occurred, the MHSA board can order the miner reinstated to his former position with back pay or that compensation be paid to a miner who lost pay due to the withdrawal order. If the proceedings are not completed within 45-days, a terminated miner must be reinstated until the board issues its findings. The board has discretion to reinstate a terminated miner if no determination is made within 45-days commencement of proceedings and the delay is caused by the board. If the delay was caused by the miner, no reinstatement will be ordered until final determination.

If the miner prevails, all his costs and expenses, including attorneys fees reasonably incurred as determined by the board, may be paid.

The administrative remedy procedure is not exclusive so a miner has the right to pursue compensation in the circuit courts of the state without first having to exhaust or complete the administrative process.

If you have a question about a whistle-blower matter, give us a call. At Wolfe, White & Associates we know the law and how to help protect your livelihood when you blow the whistle. Call us at 304-245-9097 for a free consultation.

Steven S. Wolfe, Esq.