Administrative Law Judge (“ALJ”) David Simonton recently held that a miner’s demand for “temporary economic reinstatement,” instead of accepting actual reinstatement, is not an available remedy under the Mine Act during the Section 105(c) preliminary temporary reinstatement stage of a miner’s discrimination case. The ALJ’s Order provides persuasive authority for mine operators where a miner refuses temporary reinstatement and instead desires to be paid his or her wages without working during the pendency of the discrimination complaint. The ruling also will undoubtedly impact how mine operators analyze their defense strategy for discrimination cases going forward.

In the docket Veris Gold U.S.A., Inc., WEST 2014-789-DM, Simonton initially granted the miner’s application for temporary reinstatement to her former job position and the Secretary subsequently filed a discrimination complaint on the miner’s behalf. The Secretary then filed a motion for reconsideration of the order granting temporary reinstatement and instead sought “temporary economic reinstatement” for the miner based on alleged antagonism in the workplace. Judge Simonton rejected the Secretary’s motion and ordered the parties to conduct good faith negotiations on his prior temporary reinstatement order.

Notably, Simonton stated that Section 105(c)(2) of the Mine Act does not expressly provide for the remedy of temporary economic reinstatement prior to a decision on the merits of the discrimination complaint, particularly where the operator objects to economic reinstatement. The Judge stated that the Commission has previously held that “parties have no right to require or impose on each other, nor does the court have authority to impose, economic reinstatement terms that have not been negotiated and agreed to.” See Sec’y of Labor o/b/o Kenneth Wilder v. Bledsoe Coal, 33 FMSHRC 2031, 2032 (August 2011) (ALJ Gill) (citing Sec’y of Labor v. North Fork Coal Corporation, 33 FMSHRC 92).

Only after there has been a decision on the merits can a judge impose economic reinstatement as a remedy over the objection of the mine operator. As aptly noted by Simonton, the expansive remedies afforded to a miner under Section 105(c)(2) apply only after a mine operator has been given an “opportunity for a hearing” and the Commission has found that a “person committ(ed) a violation of this subsection.” The finding of a violation also must be supported by an order “based upon findings of fact.”

Simonton’s Order reinforces the principle behind the preliminary, temporary reinstatement determination, which is to enable a miner to promptly return to work and provide actual labor in return for wages and benefits. Thus, the Secretary and claimants cannot impose economic reinstatement on a mine operator over its objection and any award of front pay cannot be made until the claimant successfully meets the evidentiary standard of a discrimination claim after a full hearing on the merits.

Of course, the parties remain free to negotiate and agree to the terms of an economic reinstatement plan as an alternative to temporary reinstatement as the circumstances may warrant. For instance, a claimant may prefer not to return to his or her former job due to perceived hostility in the workplace or other reasons. Similarly, the operator may not want to reinstate a miner who was fired for unsafe work practices or violations of company safety policies. The possibility exists that a mine operator could seek to impose temporary economic reinstatement on a miner under such circumstances. As Simonton noted, another ALJ has ordered temporary economic reinstatement over a miner’s objection “to protect the miners’ financial well being while he awaits trial on the merits” where the judge determined there was documented evidence that the miner posed a safety risk to himself and others in operating a front end loader. Citing Sec’y of Labor o/b/o Wayne Pruitt, 33 FMSHRC 1738, 1739 (July 28, 2011) (ALJ Melick).

These orders reinforce the need for mine operators to promptly and thoroughly evaluate a miner’s discrimination complaint and to make reasoned decisions regarding the prompt settlement or defense of such claims. If a mine operator believes that it can fairly and safely manage a former employee’s return to work, these cases offer support for that strategy. Such a determination involves weighing the risks and benefits of a temporary economic reinstatement plan versus temporary reinstatement to the miner’s former job. The decision to settle or litigate a discrimination case should not be made lightly as it could have significant ramifications on the operations or financial position of the operator.

Mine operators should pursue early consultation with legal counsel to determine and evaluate strategies in these situations to avoid potentially damaging long-term decisions.