Your SlideShare is downloading. ×
0
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×
Saving this for later? Get the SlideShare app to save on your phone or tablet. Read anywhere, anytime – even offline.
Text the download link to your phone
Standard text messaging rates apply

Discrimination Complaints under the Mine Act (Workplace Safety Wednesdays - Dec 2013)

155

Published on

During the December webinar, Matthew Korn discusseded discrimination complaints under the Mine Act. Matthew focused on proactive steps your Company should take to protect against discrimination …

During the December webinar, Matthew Korn discusseded discrimination complaints under the Mine Act. Matthew focused on proactive steps your Company should take to protect against discrimination complaints. As MSHA continues to focus on discrimination complaints, companies need to be prepared to defend against such claims and need to know how to avoid problems associated with discrimination.

Published in: Education
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
155
On Slideshare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
2
Comments
0
Likes
0
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® Discrimination Complaints Under the Mine Act: Six Steps to Help Prevent Complaints and Protect Your Company Presented by: Matthew R. Korn (803) 255-0000 mkorn@laborlawyers.com www.workplacesafetyandhealthlaw.com www.laborlawyers.com Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC
  • 2. Mine Act Discrimination Complaints Overview • Why do I need to know about discrimination? • What constitutes discrimination under the Mine Act? • When will a miner be temporarily reinstated and for how long? • How does the discrimination complaint process work? • What should I do to avoid a discrimination compliant? Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 3. MSHA’s Focus Has Changed • Joe Main – Current Assistant Secretary of Labor for MSHA – United Mine Workers of America - 1974 – Focus on Enforcement and Discrimination – Upper Big Branch Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 4. Significant Increase in Discrimination Complaints 80 • Main’s MSHA tripled the number of temporary reinstatement requests over a three year period 70 71 70 60 50 40 • Nearly double the number of discrimination complaints filed over the same period 39 30 20 22 10 Temporary Reinstatement Requests Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000 Discrimination Complaints FY 20072009 FY 20102012
  • 5. Are More Mine Operators Discriminating Against Miners? • MSHA focus on issue • Efforts to educate miners about their rights under the Mine Act • Low standard for temporary reinstatement • Numbers reported are filings, not actual results Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 6. What other laws protect our workers? • OSH Act Whistleblower Protections – Refusal to work in hazardous conditions: • Reasonable belief that worker faces death or serious injury • Worker has tried to get employer to correct condition • Situation is so urgent that worker does not have time to call OSHA • EEOC Retaliation Charges (1997-2012) – Title VII – Increased from 16,394 (20.3%) to 31,208 (31.4%) – All Statutes – Increased from 18,198 (22.6%) to 37,836 (38.1%) • Monetary benefits (not including monetary benefits obtained through litigation): – $41.7 million in 1997 – $177.4 million in 2012 • Workers’ Compensation Retaliation Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 7. The Basics of a Discrimination Case Protected Activity Discriminatory Conduct Complaint Filed MSHA Investigation Request for Temporary Reinstatement Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000 Miner Reinstated Discrimination Hearing
  • 8. It’s Not Always Obvious . . . • You know that you cannot fire a Miner for talking to MSHA or complaining about safety hazards • What about more difficult situations? – – – – Misconduct Late/No Show, No Call Insubordination Failure to follow safety procedures Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 9. What are a Miner’s Rights under the Act? • File or make a complaint of an alleged danger or safety or health violation – Internal or external • Refusal to work in unsafe conditions • Participate in proceedings under the Mine Act – Witness – Discriminatee • Other statutory rights – Paid as miner’s representative while accompanying MSHA inspector – Paid while receiving required training Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 10. What is Discriminatory Conduct? • Discriminatory Acts may include: – – – – – – – – – Discharge or termination Layoff Demotion Refusal of employment Reduction in benefits, vacation, bonus, or rate of pay Change in hours of work Threats of reprisal Transfer to a less desirable position with lower pay Interference with a miner’s right to complain to MSHA or participate in proceedings under the Mine Act Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 11. Causal Connection Between Exercise of Rights and Discriminatory Conduct • Discriminatory act “motivated in any part” by statutory activity – – – – Knowledge of activity Hostility or animus toward activity Coincidence in time Disparate treatment Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 12. How do I defend my Company? • No protected activity occurred • Adverse action not motivated by protected activity • If discriminatory, operator also motivated by unprotected activities and would have taken action for other reason alone Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 13. Miner Complaint and MSHA Investigation • What happens if a miner files a complaint with MSHA? – Must be filed within 60 days • Investigation – Begins within 15 days – Request for Temporary Reinstatement Immediately • Written findings within 90 days • Request for Temporary Reinstatement or Discrimination Complaint Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 14. Temporary Reinstatement Proceeding • If Miner is discharged or terminated he may request temporary reinstatement • “Not frivolously brought” standard • Almost always granted • Difficult situation Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 15. Discrimination Complaint and Hearing • MSHA will present witnesses regarding alleged discriminatory conduct • Operator has opportunity to present witnesses and evidence as well • Judge will make credibility determinations based on witness demeanor and other evidence Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 16. When “Don’t Discriminate” is Not Enough! • How do Operators protect their Company from discrimination complaints? • Limiting costs and exposure is important • Prevention can cost less than defense Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 17. #1 - Draft an Anti-Retaliation Policy • Draft policy – – – – Definition of retaliation Specific examples Complaint procedure Disciplinary action • Hotline for complaints • Distribute policy to employees – Electronic or hard copy – Signed acknowledgement – Meeting to discuss Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 18. #2 - Train Supervisors and Managers • Supervisors and Managers are agents of the operator • Trained about retaliation • How to properly react • Prepared to answer miners’ questions about policy Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 19. #3 - Educate and Assure your Miners • Education is important – don’t avoid the issue • Assure miners that your company takes health and safety seriously • Goal is to prevent external complaints Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 20. #4 - Investigate Complaints & Remedy Issues • If you receive an internal complaint: – Fully investigate complaint – Interview all witnesses and document their stories – Take appropriate disciplinary action if complaint is confirmed, consistent with written anti-retaliation policy Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 21. #5 - The 3 D’s – document, document, document • Document internal complaints and corrective actions • Document safety meetings • Document performance problems, policy violations, etc. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 22. #6 - Consult Legal Counsel • Before taking an adverse employment action • As soon as employee informs you that he filed complaint • Any time you have a question regarding discrimination Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 23. Conclusions • Our main goal is to reduce the likelihood of a discrimination complaint being filed • We can accomplish this goal by educating our employees and management team about discrimination • “An ounce of prevention is worth a pound of cure” ~ Benjamin Franklin Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 24. Additional Resources • MSHA Guide to Miners’ Rights and Responsibilities (Revised 2010) – New Version - 2013 • “Voices in the Workplace” – 40 minute (cheesy) video – Great for meeting to educate miners • MSHA Inspector or Field Office • State Agency or Industry Groups Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
  • 25. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® Join me next month! Wednesday, January 15, 2014 2:00 PM (EST) This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult counsel concerning your own situation and any specific legal questions you may have. Fisher & Phillips LLP www.laborlawyers.com ATTORNEYS AT LAW Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville Solutions at Work® Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com ● Phone (803) 255-0000
  • 26. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® Any Questions? Thank You Presented by: Matthew R. Korn (803) 255-0000 mkorn@laborlawyers.com www.workplacesafetyandhealthlaw.com This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult counsel concerning your own situation and any specific legal questions you may have. Fisher & Phillips LLP www.laborlawyers.com ATTORNEYS AT LAW Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville Solutions at Work® Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com ● Phone (803) 255-0000

×