There are many reasons why you may find yourself in the midst of an MSHA investigation. While much has been written about the common wisdom in how to best handle those investigations, things have changed in the last few years. You may be thinking: “How can an investigation be different now? We still have the same inspectors in place.” While the second statement may be true — and employers may feel some comfort with the new administration and changes, i.e., the withdrawal of OSHA’s “Fairfax memo” — MSHA’s use of Section 110(c) of the Mine Act remains an increasing problem for those in the mining community and this problem does not seem to be going away anytime soon. Indeed, MSHA’s increased use of Section 110(c) to assess civil penalties against individuals is on the rise and the circumstances in which MSHA has recently attempted individual assessments is nothing less than shocking. As lawyers litigating against MSHA, (in our opinion) this has become an all too frequent and warrants attention.
As many know, Section 110(c) generally provides that whenever a corporate operator violates a mandatory health or safety standard or knowingly violates or fails or refuses to comply with any order issued under the Act, any director, officer, or agent of such corporation who knowingly authorized, ordered, or carried out such violation, failure, or refusal shall be subject to the same civil penalties, fines, and imprisonment that may be imposed under 110(a) and 110(d) of the Mine Act. While it seems common sense may govern MSHA’s thinking on who is an “agent” of the company, and what constitutes “knowingly authorizing, ordering, or carrying out,” experience shows that common sense may not be so common. It is also worth noting that, in some cases, MSHA has pursued hourly employees as “agents” of the company, as well as workers injured by their own actions. Accordingly, in almost every situation, the handling of an MSHA investigation — and especially the interviews — should be carried out with extreme vigilance — certainly if there is any reference or mention of a “special investigation” or “special investigator” extreme caution should be used. In fact, you may find yourself at the epicenter of such an investigation following an incident that results in an injury, fatality, withdrawal order, imminent danger order or flagrant violation classification. If one of these situations arises, the following are a few thoughts on what to look for (and avoid) during an inspection under the current MSHA climate.
While much has been devoted to the mechanics of preparing employees for interviews with MSHA (e.g., tell the truth, do not guess, make sure you understand the question asked before answering, etc.), and how to interact with the MSHA representative once he/she is on-site, in the short space here we will assume that our readers have implemented these basic practices. With that said, the following are a few points that employers and employees should be on the guard for to mitigate against the increased scrutiny that may occur with an investigation that may eventually lead to a 110(c) or special investigation.
Be wary of MSHA trying to make an employee an “agent” or “supervisor” when they are in fact not an “agent” or “supervisor.” These questions may focus on who is:
- Responsible for required examinations;
- In a position to enforce safety rules;
- Directing the work;
- Responsible for training;
- Responsible for mine operations; and
- Part of supervision for miners (even hourly employees).
Before answering any question that appears to focus on “agency” or “supervision,” the person answering should have a clear understanding of what is being asked and why. Keep in mind that you are free to ask questions of MSHA and expect a direct and truthful answer before answering a question. Employers and employees should be wary of any question that implies “knowledge.” Questions that imply or have an imbedded admission (in the form of a leading question) that the employee, if exercising reasonable care, would have obtained the knowledge of the fact in question (or the standard at issue), are common and seek unknowing admissions that may ultimately be used against the person making the statement. Be on the lookout for questions where MSHA is trying to obtain evidence that a person “authorized, ordered, or carried out” a violation. This is a fundamental element of MSHA’s 110(c) claim. Therefore, MSHA will be looking for evidence to support an allegation that the person knowingly authorized, ordered or carried out the violation. Finally, since MSHA has the statutory authority to prosecute criminally, any question that is intended to establish that a person “willfully” violated the Mine Act, or that it did so with “reckless disregard” of the Mine Act’s requirements, should be answered with the assistance of counsel in most instances.
Collin Warren is a partner in the firm’s Houston and Dallas offices. Collin has nearly 15 years of experience representing clients in state and federal courts, as well as before the Occupational Safety and Health Administration (OSHA) Review Commission, Mine Safety and Health Administration (MSHA) Review Commission, Equal Employment Opportunity Commission (EEOC) and other state and federal regulatory agencies. Collin has first and second chair trial and arbitration experience and has handled numerous investigations, incidents and litigation arising out of fatalities, significant injuries, property damage, and environmental issues. He also has experience addressing workers’ compensation and nonsubscriber issues, as well as employment issues. You can reach Collin at firstname.lastname@example.org or 713-292-0150.
Travis Vance is Of Counsel in the Fisher Phillips’ Charlotte office and can be reached at email@example.com. or 704.778.4163. He has tried matters across several industries and various subject matters, including employment litigation, business disputes and matters prosecuted by the Mine Safety and Health Administration (MSHA) and Occupational Safety and Health Administration (OSHA).