Company Personnel Are Still Surprised When They Or Their Colleagues Receive A Proposed Fine.
By Henry Chajet , Jackson Lewis P.C.
No one should be surprised that MSHA is aggressively using Section 110 (c) of the Mine Act to propose fines against lead men, foremen, supervisors, managers and corporate officials, based on allegations that a “director, operator or agent” … “knowingly authorized, ordered or carried out” violations, and is “subject to the same civil penalties, fines, and imprisonment” that may be imposed on companies under the Act.
Rather than be surprised, company personnel should be trained to fully understand this particularly troubling provision of the Act that targets individual management representatives, and MSHA’s procedures for investigating potential Section 110 (c) penalties.
There are many legal questions that surround 110 (c) fines, including whether the target is an “agent” with the authority to direct and supervise employees. For example, MSHA has targeted “lead men” or hourly personnel that act as company representatives and oversee work. These are difficult cases for MSHA to prove and we have defeated them with particular facts, such as:
- the lead men do not have the authority to bind the company, nor
- hire and fire; nor
- the authority to assign work, perhaps only relaying assignments, nor
- are not salaried and paid on an hourly basis, nor
- have the authority to discipline employees, but instead refer them to supervisory personnel.
Arguably some salaried company personnel, such as engineers and support service personnel, are not management agents either because they do not supervise, direct, assign, nor hire and fire. A clear understanding of these factors is critical in preventing unsupported management agent allegations by MSHA.
Of course, MSHA also has to prove “knowing” or “willful” conduct, and most often seeks to establish it by statements or documents from company personnel.
Was Joe aware of the job? How long the condition was present? How often does a supervisor walk or inspect the area? What records of the condition or practice exist? Does Joe receive or review them in the normal course of work?
The best evidence MSHA hopes to collect is a statement from the alleged agent himself, an “admission” that he was aware of the violation, condition or practice. Did you know? Did you assign the work? Did you look at the condition?
When MSHA conducts investigations and asks seemingly simple questions about job titles, authority and responsibilities, in conjunction with when did you know and what did you know questions, often the questions are aimed at addressing 110 (c) penalty issues, sometimes by marking citations high negligence or reckless disregard or unwarrantable failures, and sometimes by naming the alleged agent in the citation itself.
These situations require cautious responses, if any, and a clear understanding of the ramifications of the questions. Truthful answers are required, and lies can be a much worse federal felony, but refusing to speak to MSHA or to participate in an interview, is an individual’s right, which MSHA seeks the individual to waive, often by merely asking the questions and getting what will later called “voluntary answers,” that waived the individual’s rights.
We are often asked if MSHA will be suspicious or revengeful if an individual exercises their rights of free speech and right not to speak (unless ordered by a court). Our answer is that they are already suspicious and will take enforcement actions, regardless of an individual’s participation in a discussion. Sometimes, “I don’t feel like talking about it” is truthful, warranted and smart.