There are several steps that mine operators can take to protect their operations and their employees from from Department of Justice criminal prosecutions writes Kelby Thomas Gray at law firm Dinsmore & Shohl.
On December 17, 2015, the United States Department of Labor and the United States Department of Justice entered into a Memorandum of Understanding (“Memorandum”) that provides for the coordination of matters pertaining to worker safety that could lead to criminal prosecutions by the Department of Justice. Significantly, the Memorandum addresses criminal prosecutions under the Federal Mine Safety and Health Act of 1977 (“Mine Act”), which provide criminal sanctions for: (1) knowing or willful violations of mandatory safety and health standards; (2) giving advance notice of Mine Safety and Health Administration (MSHA) inspection activity; and (3) falsification of documents filed or required to be maintained under the Mine Act.
Pursuant to the Memorandum, the Department of Labor and the Department of Justice will cooperate in developing and carrying out training, technical and professional assistance, referrals for alleged violations, and related matters regarding compliance and law enforcement activity. Specifically, the Associate Solicitor for MSHA, in consultation with the MSHA Administrator for either Coal Mine Safety and Health or Metal/Nonmetal Mine Safety and Health, will periodically discuss with the Department of Justice those employers or worker safety matters that may be appropriate for enhanced investigation or criminal referral.
To ensure that valid referrals are made when potential violations are found and, according to the Memorandum, “to increase the frequency and effectiveness of criminal prosecutions of worker-safety violations,” the departments have agreed to develop and conduct periodic training programs for each other’s personnel regarding the respective laws, regulations, and procedures of each agency. If a decision is made to refer a matter for consideration of criminal action, the Department of Labor will likely prepare a referral memorandum and recommendation to an appropriate US Attorney’s office and an investigation by the Department of Justice may commence.
There are several steps that mine operators can take to protect their operations and their employees from such referrals and from Department of Justice investigations. First, in order to comply with MSHA laws and regulations, employers should encourage familiarity with MSHA enforcement among employees, and particularly agents.
The Mine Act and MSHA’s regulations are mind boggling, and as such it is impractical to assume employees will become experts on MSHA’s enforcement arsenal. However, mine operators and their agents can help to stem the tide of special investigations by studying MSHA’s top twenty list of citations, MSHA’s Rules to Live By, their operation’s individual regulatory history, and selected hot button issues under the Mine Act such as the prohibition against advance notice of MSHA inspection activities.
If the Department of Labor and the Department of Justice have agreed to conduct periodic training programs for each other’s personnel regarding the respective laws, regulations, and procedures of each agency, mine operators should commit to conducting regular training programs for its employees as well. Such training should include not only a thorough overview of applicable MSHA regulations, but an overview of the MSHA inspection process and appropriate record keeping during inspections.
Second, MSHA has recently placed an increased emphasis on workplace examinations, particularly in the metal/nonmetal industry, and alleged workplace examination violations could be subject to possible criminal referral, especially if the alleged violation was issued under Section 104(d) of the Mine Act.
As such, all mine operators, regardless of whether engaged in the coal industry or the metal/nonmetal industry, must ensure that all designated examiners are properly trained on applicable examination requirements.
Examiners must be able to recognize conditions that may adversely affect safety and health, have the authority and the resources necessary to initiate appropriate corrective action, and then promptly initiate such action to correct those conditions as failure to do so could result not only in the issuance of a citation or an order by an MSHA inspector, but in a possible criminal referral to the Department of Justice. In addition, examiners must be familiar with the applicable recording and record keeping requirements of their workplace examinations.
Third, mine operators should develop a well-crafted safety and disciplinary policy that insists on safe work habits and compliance with MSHA laws and regulations. While many mine operators already have such policies in place, enforcement of those policies is often irregular and inconsistent.
As such, mine operators should train management personnel to actively enforce the company’s safety policies and to take disciplinary action when appropriate. Creating and consistently adhering to such policies not only reinforces the company’s commitment to safety, but expressly describes to all employees their obligation to adhere to all applicable laws and regulations.
Fourth, mine operators should conduct regular safety meetings with their employees to discuss conditions found during examinations and during the regular work day and ways to prevent those conditions from developing.
Creating an open dialogue about safety and compliance with MSHA regulations is another way to reinforce the company’s commitment to safety, and examiners and members of mine management may learn about issues during those safety meetings that help identify and address issues found during examinations and during the work day.
Finally, given the Memorandum between the Department of Labor and the Department of Justice, as well as the rise in Section 110 investigations under the Mine Act, mine operators should provide their employees with training on potential civil and criminal liability.
While most, if not all, mine operators and employees aspire for a work environment that is healthy, safe and in compliance with applicable laws and regulations, employees should be advised of the potential consequences of not working safe and not complying with MSHA’s regulations.
Dinsmore & Shohl