{"id":7918,"date":"2024-04-19T19:00:00","date_gmt":"2024-04-19T19:00:00","guid":{"rendered":"https:\/\/northamericanmining.com\/?p=7918"},"modified":"2024-07-31T19:00:27","modified_gmt":"2024-07-31T19:00:27","slug":"a-recent-discrimination-case-and-some-good-news-for-mine-operators","status":"publish","type":"post","link":"https:\/\/northamericanmining.com\/index.php\/2024\/04\/19\/a-recent-discrimination-case-and-some-good-news-for-mine-operators\/","title":{"rendered":"A recent discrimination case \u2013 and some good news for mine operators"},"content":{"rendered":"\n

By Willa B. Perlmutter<\/em><\/p>\n\n\n\n

Well, guys, I hate to say I told you so, but\u2026well, I told you so. A few months back, I wrote about a whistleblower retaliation case that had just come out of the Federal Mine Safety and Health Review Commission, and shared with you that I thought the Commission\u2019s reasoning gave cause for alarm. (I know, right? Bold move for someone who regularly appears as a lawyer before them.)<\/p>\n\n\n\n

It turns out that not only were my concerns legit, the appellate court saw the same problems I did. But wait, it gets even better. I didn\u2019t just call the case right, but the outcome (and more importantly, the reasoning) will be good news for mine operators. I know you\u2019ve got a million questions, but hold on and I\u2019ll explain.<\/p>\n\n\n\n

Last summer, I told you about the Continental Cement Company case, which had just come out of the Commission. As a reminder, here\u2019s what happened there: A miner, Tara Otten, worked as a laborer at a limestone mine in Hannibal, Mo. Occasionally, the company asked one of its laborers to fill in as a heavy equipment operator, and the laborer would get a few extra bucks an hour. Since Otten had the most seniority, she was the first person who would be offered that job and that bonus pay.<\/p>\n\n\n\n

She was also a representative of miners, and in that capacity, she walked around with MSHA when they were there to inspect the mine. At first, the company would pay her the bumped-up hourly wage for the time she was traveling with MSHA, but at some point, the company\u2019s HR manager left his job and the replacement decided the mine\u2019s collective bargaining agreement actually required Otten to be paid the lower rate. Continental started paying her the reduced wage when she exercised her \u00a7 103(f) walkaround rights. Otten filed a \u00a7 105(c) discrimination complaint with MSHA, and the Secretary of Labor brought suit against Continental on her behalf, arguing that by paying the lower laborer rate, the company had unlawfully interfered with her right under the Mine Act to walk with MSHA without losing pay.<\/p>\n\n\n\n

At trial, Otten won. After the company appealed, the Commission decided that Continental had indeed violated \u00a7 103(f) of the Mine Act by not paying her the bumped-up rate. The Commission went one step further, though, and decided that because it found there was a \u00a7103(f) violation, Otten did not also have to meet the traditional test by proving that Continental was unlawfully motivated by her miners rep activities to have violated \u00a7 105(c) as well.<\/p>\n\n\n\n

In other words, the Commission effectively found two violations at once: first, that Continental violated \u00a7 103(f) by not paying Otten the higher rate when she walked with MSHA; and second, that since \u00a7 103(f) had been violated, the company must also have discriminated against her in violation of \u00a7 105(c).<\/p>\n\n\n\n

When I wrote about this case last year, I sounded the alarm about what it would mean for the Commission to throw out long-standing legal precedent by finding discrimination had occurred without first examining the mine operator\u2019s motivation just because the operator had violated a different section of the Mine Act. I echoed Commissioner Althen\u2019s concerns that the Commission was opening a door to legal liability that had historically and properly stayed closed until now.<\/p>\n\n\n\n

Continental appealed the Commission\u2019s ruling to the U.S. Court of Appeals for the Eighth Circuit in St. Louis. The Eighth Circuit sided with the company, in part for the reason that both Commissioner Althen and I raised: \u201cIt\u2019s true that Otten wrongly suffered a loss of pay and so Continental violated \u00a7 103(f),\u201d it wrote. \u201cBut it cannot be that Continental\u2019s violation for \u00a7 103(f) necessarily means that it violated \u00a7 105(c)(1) as well.\u201d (That\u2019s where the \u201cI told you so\u201d comes in.)<\/p>\n\n\n\n

But the Eighth Circuit went even further. In another old column, I told you about a decision by the Ninth Circuit in Thomas v. CalPortland Company that eased the burden of proof that miners claiming discrimination have to meet to win their cases, eliminating the need to prove retaliatory motivation and instead just requiring them to show that the unlawful retaliation would not have happened \u201cbut for\u201d the miner\u2019s protected activity. The Eighth Circuit looked at that recent decision and held that such \u201cbut for\u201d causation was not enough.<\/p>\n\n\n\n

Rather, the court wrote, the miner has to show that the company retaliated against her (or him, if that\u2019s all you\u2019ve got) because they had engaged in protected activity. In other words, the Eighth Circuit decision will make it harder for miners to prove unlawful discrimination, since they will need to prove that their protected activity motivated the company to retaliate against them. In the Otten case, the court found that the decision to pay her less than she wanted had nothing to do with Otten\u2019s exercise of her walkaround rights. They found that the record showed that the HR manager simply didn\u2019t care why Otten couldn\u2019t be a step-up heavy equipment operator. They just knew that she couldn\u2019t.<\/p>\n\n\n\n

So, this is really good news for mine operators. First, the Eighth Circuit headed off the Commission\u2019s dangerous suggestion that when an operator violates a provision of the Mine Act that violation alone could substitute for proof of unlawful motivation in \u00a7 105(c) cases. (Phew. That\u2019s a relief.)<\/p>\n\n\n\n

Second, the court distanced itself from the Ninth Circuit\u2019s position in the CalPortland case, and reinforced that in future cases, a miner has to prove that the company was unlawfully motivated by his or her protected activity and can\u2019t get away with showing only that the discriminatory action would not have occurred \u201cbut for\u201d that activity.<\/p>\n\n\n\n

One word of caution, though. Technically, the Otten decision is binding only in that circuit, which means that in theory, only mines in the Dakotas, Nebraska, Minnesota, Iowa, Missouri and Arkansas have to follow the Eighth Circuit\u2019s guidance. And as I\u2019ve said, the holding in the Otten case is at odds with the CalPortland case, which applies on the West Coast, as well as in Alaska, Hawaii, Montana, Idaho, Nevada, and Arizona. Typically, disagreements between circuits get resolved by the U.S. Supreme Court, but at this point I would be surprised if anybody plans to ask the Supreme Court to hear their case. (Stranger things have happened, of course, but still.) So, the law of \u00a7 105(c) is still in flux \u2013 but the Otten case could have been a disaster for mine operators, and we\u2019ve managed to dodge that bullet. For now, anyway.<\/p>\n\n\n\n

Willa Perlmutter is chair of Stoel Rives\u2019 OSHA group and co-chair of the firm\u2019s mining group. She can be reached at willa.perlmutter@stoel.com.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

By Willa B. Perlmutter Well, guys, I hate to say I told you so, but\u2026well, I told you so. A few months back, I wrote about a whistleblower retaliation case that had just come out of the Federal Mine Safety and Health Review Commission, and shared with you that I thought the Commission\u2019s reasoning gave cause for alarm. (I know,…<\/p>\n","protected":false},"author":7,"featured_media":4194,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_themeisle_gutenberg_block_has_review":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[6],"tags":[3080,3081,638,158],"coauthors":[1649],"class_list":["post-7918","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-law","tag-continental-cement-company","tag-heavy-equipment-operator","tag-mine-operators","tag-msha"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t