It’s been a really bad year for mine operators. The Upper Big Branch explosion in West Virginia that claimed 29 lives was the worst of its kind since 1970, according to the United States Mine Rescue Association. As Tom O’Connor puts it, workplace deaths have become an epidemic. But, as bad a year it has been for mine operators, imagine how bad it’s been for the workers themselves.
All year, this epidemic has received Congress’ attention as it holds hearings into the causes of such workplace deaths. And yesterday, House and Senate leaders introduced a legislative outline to improve compliance with mine and occupational safety laws, strengthen whistleblower protections, and help families of victims understand the cause of such accidents. The Miner Safety and Health Act of 2010 has several changes to the Mine Safety and Health Act, that if passed would vastly improve mine safety.
Here are some of the major points of the outline:
Pattern of Violations. Earlier this month, the DOL issued a statement detailing certain faults with establishing patterns of mine safety violations. You can read his full statement here and my article on it here. The outline includes a section that would place mine operators in pattern status if it has a pattern of citations for significant and substantial violations (no change here), citations for flagrant violations, withdrawal orders, or any combination of factors. Of course, this also requires the Secretary of Labor to create threshold criteria for placing mine operators in this status. After looking closely at the new legislation, I have to wonder whether there really are any differences here. Perhaps the differences will come in the threshold details later.
Penalties. The new legislation would significantly increase the maximum penalties for mine operators. Single violations would increase from 50,000 to 150,000, and doubles the penalty for violations under pattern status. While the increase of fines is all well and good, what struck me about this legislation was the change of mens rea for criminal sanctions from “willful” to “knowing.” This lowers the standard of mens rea, and means the government would have to show an operator (or operator’s agent) knew of violations in their mines without correcting them, rather than an intention to break the law.
Retaliation. Included in this outline is a section allowing workers to refuse their employment duties if they have a good faith and reasonable belief that performing that duty would pose a safety or health risk to any miner. The standard for this would be what a reasonable miner, faced with the same circumstances, would do. To qualify for this protection, the miner has to at least attempt communication regarding the safety issue to the mine operator without receiving a response to mitigate the danger.
There is no question something must be done to stamp down on worker injuries, especially in dangerous industries like mines. Reviewing the legislation for cracks is necessary, but it won’t solve the problem of dangerous conditions. For that, we need oversight. We need people willing to use the regulations already in place. And we need people to pay attention when it’s only a single worker’s life.
About The Author: Ravi Bakhru is a third year law student at George Washington University. He currently works as an intern for Workplace Fairness, and has an interest in pursuing employee rights law in the future. To get in touch with Ravi, you can email him at [email protected]