Is the Agency’s Interpretation of Some Cases Broader Than it Should Be?
By Donna Vetrano
On May 24, 2011, MSHA issued a news release touting the findings of two recent decisions issued by Administrative Law Judge Kenneth R. Andrews, Independence Coal Company v. Secretary of Labor (ALJ May 23, 2011) and Big Ridge, Inc. v. Secretary of Labor (May 20, 2011). These cases concern a company’s requirement to provide data relating to accidents, injury or illnesses during audits conducted by MSHA. In its release, MSHA states it “is authorized to inspect and/or copy any information the agency thinks may be relevant and necessary to determine compliance with reporting requirements, including medical, employment and other company records.” But along with MSHA’s confident press release, it raises the question of whether MSHA’s authority is really that broad or is the agency’s interpretation of these cases broader than it should be?
In October of 2010, MSHA began a nationwide initiative to conduct compliance audits under Part 50 of 30 C.F.R. As a part of these audits, inspectors provided operators with a letter requesting: (1) MSHA Form 7000-1 Accident Reports; (2) MSHA Form 7000-2 Employment and Production Reports; (3) all payroll records and time sheets for all individuals working at the mine; (4) the number of employees working at the mine for each quarter; (5) all medical records, doctor’s slips, worker compensation filings, sick leave requests or reports, drug testing documents, emergency medical transportation records; and medical claim forms in the operator’s possession relating to accidents, injuries, or illnesses that occurred at the mine or may have resulted from work at the mine for all employees.
In both cases, the operator refused to provide medical records to MSHA and additionally one operator refused to provide payroll records. The mine operators argued that MSHA does not have the right to inspect an operator’s records that are not required to be maintained by the Mine Act without a warrant. The operators also argued the Secretary of Labor must use her rulemaking authority to obtain the information requested. The operators argued that MSHA’s procedures were not sufficient to ensure the nondisclosure of private employee information. The parties also put forth that there is a constitutionally protected expectation of privacy in records not explicitly required to be kept by law, and there is potential liability under federal and state laws.
In his decisions (which were substantially similar), Judge Andrews begins his discussion of the issues by addressing the importance of reporting under Part 50 and how a mine’s incident rate is used to objectively view a particular mine’s record. The court states that knowing the “prevalence of specific types of injuries and their usual severity allows for more efficient allocation of agency resources in developing strategies not only for enforcement but also for training with the goal of improving the health and safety of miners.” While the court was very concerned with the dangers of under-reporting under Part 50, it seemed less concerns with the problems of over-reporting:
Over-reporting would also result in inaccurate information and misallocation of resources. The mine would appear less safe than it actually is, and this could result in increased inspections. However, this would rarely be the concern to be addressed.
The decision then discusses that while the safety managers at the mines are responsible for completing the MSHA Forms 7000-1 and 7000-2, any medical records or workers’ compensation information is handled by human resources. The court opined that there is at least the potential for relevant events to go unreported. The judge cited the testimony of the Acting Director of Accountability for MSHA, Peter Joseph Montali, noting the limited use of the medical records, payroll and time sheet records, and other information to cross-reference and verify the complete and accurate reporting of all required information. According to Judge Andrews, “if the operator does not cooperate in the [audit] process, there can be no assurance that the safety and health information compiled by MSHA is correct.” The court then stated the importance of accurate reporting in relation to the criteria for establishing a pattern of significant and substantial violations. The court took notice that documents requested by the agency were “limited” – medical records only related to accident, injuries, and illnesses that occurred at the mine or may have resulted from work at the mine; payroll and time sheets only to verify the total number of employees and the total hours worked, workers’ comp filings to cross-reference with the 7000-1 forms submitted, drug testing documents limited to tests taken after an accident-causing injury, and medical claims forms limited to determining whether a particular illness would qualify as an “occupational illness.”
In a broad, sweeping statement, the court stated that in order to “develop effective health standard, control the data flow, and discover violations, MSHA is allowed to inspect and/or copy any information the agency thinks may be relevant and necessary to determine compliance with reporting requirements.” (emphasis added).
The court distinguished these cases from Sewell Coal Company, 1 FMSHRC 864 (ALJ 1979), which held that MSHA could not inspect the private personnel files of a mine, in the absence of a valid warrant. The court reasoned that in Sewell, MSHA inspector asked for direct access to the private personnel files of the company, but in the cases before the court MSHA is simply requesting documents and were not “rummaging through the file cabinets of files of the operators.” Mine operators in the recent MSHA Part 50 audits were asked to search their own files for information, producing only documents meeting the specifics of the request.
While the operators argued that these records were highly sensitive and private, and granting the Secretary access to them would violate the privacy rights of their employees, the court found this argument unpersuasive and responded:
Although no one would argue against the notion that medical and personnel records are of a highly sensitive and personal nature, there are certain important interests of the government that override these concerns. …The disclosure of private medical information to a public health agency is a reasonable exercise of government responsibility over public welfare where it is related to occupational health and safety and does not violate any rights or liberties protected by the Fourteenth Amendment…..Further and more importantly, it may be concluded that the governmental interest in promoting mine safety far outweighs any interest the mine operators may have in privacy.
The court importantly fails to mention three things. First, it fails to mention the privacy interest of the miners whose personal medical, payroll, and other information are making it into the not-so-secure coffers of the federal government. Though the court points out that the safeguards that MSHA uses to prevent disclosure of private information are “adequate,” it acknowledges that the procedures are not “fool-proof.” Second, the court’s decision didn’t mention the very real possibility that providing this personal information may be in clear violation of state law, which could provide a private right of action to the miner against the operator for releasing the information. Finally, the court fails to address the fact that MSHA’s warrantless search authority has been held constitutional in part because it is restricted and does not allow complete access to all records on the mine property. After Independence and Big Ridge, one is left to wonder what restrictions are left – aside from MSHA not being allowed to physically rifle though through the file cabinets of an operator themselves.
While, overall the holdings in Independence Coal Company v. Secretary of Labor and Big Ridge, Inc. v. Secretary of Labor appear to expand the obligation to provide documents to MSHA, the holdings appear to be limited to the context of Part 50 audits. Operators should be warned that MSHA inspectors or investigators may cite either of these cases in the context of a general inspection or an accident, discrimination or 110(c) investigation. These two decisions, however, are just the first chapter in what will inevitably be a long hard battle to preserve our rights from overarching government regulation.