On Tuesday, September 12, 2023, Nicholas Scala will present a webinar regarding Managing MSHA Complaint Investigations and 105(c) Complaints.
MSHA’s authority does not end at regular safety and health inspections, or with serious incident investigations. 
It is unquestioned that miners have the right to file complaints with MSHA, but what some operators may not know is that MSHA is required to conduct an investigation into miner complaints promptly. This includes safety and health complaints, and it also includes complaints of discrimination under §105(c) of the Mine Act. Whistleblower/discrimination protections have been emphasized by the Biden Administration and its Department of Labor, and that includes MSHA. Additionally, MSHA offers miners the opportunity to be temporarily reinstated during the investigation or pendency of the legal matter in some instances. Operators unfamiliar with this process may unknowingly waste vital moments, which have the potential to be very damaging in this process.
This webinar will review MSHA’s obligations to investigate complaints of safety and health concerns, as well as complaints of discrimination by miners. Participants will learn the timelines for the investigations and best practices for defending against such complaints.
Participants in this webinar will learn the following: Continue reading
Ms. Shaked, a seasoned employment litigator and Cal/OSHA practitioner based in San Francisco, CA, represents employers on a wide range of employment matters, including Cal/OSHA investigations and appeals of Cal/OSHA citations, claims of discrimination and harassment, wrongful termination, wage and hour violations, and whistleblower actions. She also conducts workplace harassment prevention training, and counsels employers on workplace safety compliance, the development of employee handbooks, hiring and termination decisions, leaves of absence and accommodations, and wage and hour compliance.
On July 13, 2023, MSHA published its proposed rule Lowering Miners’ Exposure to Respirable Crystalline Silica and Improving Respiratory Protection in the Federal Register. This long-awaited rule proposes to substantially reduce the permissible exposure level for Respirable Crystalline Silica in the mining industry and proposes substantial new requirements on operators such as mandated testing and documented evaluation, along with the prohibition of some administrative controls for compliance.
The line in the sand is largely drawn out in a 1979 Memorandum of Understanding (MOU) between the agencies, but that document leaves many questions outstanding. While some of these have been answered by the court system – including OSHRC and FMSHRC – many times questions or jurisdiction live in a very grey space.
While mine operators and mining contractors are likely used to MSHA conducting on-site safety and health inspections, when a serious incident occurs, the MSHA investigation takes a different approach. Seasoned mine operations are often caught off-guard by the depth of the investigation after a serious incident and are at times taken aback by the tone of the investigation – usually conducted by unfamiliar MSHA personnel from other areas in the district and management and non-management employee interviews will be central to the investigation. MSHA is also likely to issue a 103(K) Order, essentially shutting down the area or equipment subject to the incident, and the Order can stay in place for months, leaving the operator in a loss position.