What was recently a hot topic within the regulatory community, conversations about Occupational Safety & Health Administration (OSHA) and Mine Safety & Health Administration (MSHA) whistleblower, retaliation, and discrimination claims have seemingly fallen by the wayside.  But don’t be fooled.  Two recent developments demonstrate that these US Department of Labor agencies continue to find novel ways to protect our nation’s workers when they raise safety, health, or other legal compliance concerns in the workplace. These include: (1) OSHA’s expedited determination Pilot Program; and (2) MSHA’s increased focus on “interference” claims.

OSHA – Expedited Determinations

OSHA’s Whistleblower Protection Program is currently the most widespread anti-retaliation legal regime in existence, as OSHA is responsible for overseeing whistleblower provisions of 22 statutes, including Section 11(c) of the Occupational Safety & Health Act.  Because of the breadth of OSHA’s mandate, the Agency has understandably struggled to keep up with its oversight responsibilities in a timely manner.  Although these statutes “require” OSHA to complete retaliation investigations within 30 to 60 days, the average time for completion of such investigations in 2015 was 291 days.  This means, on average, it takes OSHA nearly a year just to make a determination on whether it believes the underlying claim has merit, not to mention the additional time involved post-investigation to litigate such claims.

In response, OSHA recently implemented a Pilot Program to establish a year-long expedited-case-processing policy in Region 9.  Under the Pilot Program, complainants will now be able to request, after 30 to 60 days, that OSHA close its investigation and issue the Secretary’s Findings, so that complainants can “more expeditiously” seek judicial relief on their claims.  All but three of the statutes under OSHA’s mandate (Section 11(c), AHERA, and ISCA) provide for de novo review by an administrative law judge; thus, OSHA believes this procedure is consistent with the applicable statutes and regulations.  The Agency also believes this process will provide the following benefits: (1) fulfill complainants’ requests; (2) reduce respondents’ damage liabilities; and, most notably, (3) allow OSHA to refocus efforts on helping complainants in cases under statutes where there is no private right of action.

The effects of this Pilot Program could be debated ad nauseam (and likely will be until the Program is complete), but the primary takeaway is that OSHA has put a renewed focus on whistleblower claims and is actively trying to uncover ways for the Agency to dedicate more resources to processing retaliation complaints.  As history teaches, this isolated Pilot Program is likely to be followed by other similar and perhaps more robust modifications to the anti-retaliation system nationwide.

MSHA – Interference Claims

MSHA’s anti-retaliation net is not cast as wide as OSHA’s, but its hooks often pierce much deeper. MSHA’s statutory authority, as provided by the Federal Mine Safety & Health Act of 1970, is still one of the most imposing powers among federal agencies.   For example, when the Agency investigates claims under Section 105(c) of the Mine Act, it has expansive means to force employers to participate in Agency investigations, to gather extensive information without the use of subpoenas, and even to temporarily reinstate miners (without conclusive proof of wrongdoing) while the claim is adjudicated.

In 2014, MSHA strongly pushed “worker voice initiatives” aimed at encouraging miners to file complaints and directing the Agency to bring complaints on miners’ behalf.  As a result of the initiative, a record number of complaints were filed by the Agency.  This trend continued in 2015.

Now, in addition to the intensified focus on classic “intentional discrimination” cases, MSHA has begun to expand its reach further by focusing on the “unlawful interference” provisions of the Mine Act. Under Section 105(c), “[n]o person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner….”  In the Secretary of Labor’s view, a Mine Act interference violation occurs when: (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 that outweighs the harm caused to protected rights.  Most importantly—and unlike intentional discrimination cases—no adverse action is necessary.

The Federal Mine Safety & Health Review Commission has not yet clearly established the framework for evaluating interference claims.  But, two of five commissioners, writing a concurring opinion in UMWA on behalf of Franks and Hoy v. Emerald Coal Resources, adopted the Secretary’s test.  Importantly, they also opined that no evidence of discriminatory animus or intent is necessary for an interference claim.  The US Court of Appeals for the Third Circuit remanded this case to the Commission for further factual analysis in August 2015, and the final outcome is pending.  Until the Commission conclusively tackles this issue, however, it is reasonable to conclude that the Secretary will continue to enforce this provision as outlined above.

Given the arguably lower burden for interference claims, combined with the already strong protections against intentional discrimination, the present potential for Section 105(c) claims is high. There is thus no reason to believe that MSHA’s increasing focus on retaliation cases will not continue.

Takeaway

Obviously the best way to deal with retaliation claims is to prevent them in the first place.  Because this area of law is constantly changing and expanding, it is essential to stay abreast of the current landscape of federal and state anti-retaliation enforcement.  By doing so, you can educate those within your organization on (1) the proper methods for preventing discrimination and retaliation (i.e. written policies, training, and audits); and, if for some reason your company still ends up with a retaliation claim, (2) the appropriate procedures for responding to claims as they arise (i.e. strategic investigations, agency diplomacy, and strong legal representation).