Whistleblower laws exist to protect workers who have been fired or otherwise punished by their employers for complaining about working conditions. Reuben Shemwell, a welder in Kentucky, says he was fired in September 2011 by a division of Armstrong Coal for complaining about workplace safety conditions related to confined space entry and refusing to work on machinery that had not been de-energized. His former employer countered, claiming Shemwell was warned three times for excessive cell phone use and his employment subsequently was terminated.
Following his dismissal, Shemwell filed a discrimination complaint with the Mine Safety and Health Administration, which tried to inspect the location where Shemwell had been employed. Before MSHA could conduct the inspection, Armstrong shut the operation down and furloughed 10 workers. An administrative law judge with the Federal Mine Safety and Health Review Commission ordered that Shemwell be reinstated to his position with the company, and Armstrong appealed the decision. On July 12, 2012, the commission issued a decision affirming the judge’s decision ordering that Shemwell be reinstated until the commission was able to determine the merits of his complaint.
The commission held that the miner’s complaint, which alleged that he was discharged because he complained about the lack of protection from welding fumes, was "not frivolously brought" within the meaning of the Mine Act's temporary reinstatement provision. The commission also held that Shemwell’s right to temporary reinstatement was not affected by Armstrong’s layoff of miners at his former jobsite.
Unfortunately for Shemwell, MSHA decided not to pursue his discrimination complain against Armstrong Coal, and the company fired back with a lawsuit.
In the filing, Armstrong asserted that “Shemwell did not file his discrimination claim for the purpose of exercising any valid legal right… Despite Shemwell's knowledge that his own misconduct was the sole reason for the termination of his employment, Shemwell desired to cause damage to plaintiffs due to their termination of his employment.”
Tony Oppegard, Shemwell's attorney, said he thinks the reason Armstrong Coal filed the lawsuit “was to intimidate him and to intimidate other miners.”
Perhaps the company has gone too far this time; MSHA once again has entered the battle, filing a complaint against Armstrong Coal, stating that the lawsuit was an attempt to discourage miners from filing discrimination complaints. “Miners who wish to avoid similar treatment will be hesitant from asserting their rights," MSHA said in the complaint.
According to Section 105(c) of the Federal Mine Safety and Health Act of 1977, a miner cannot be discharged, discriminated against or interfered with in the exercise of statutory rights because he or she has filed a complaint alleging a health or safety violation. In addition, miners have rights including, for example, to testify or assist in legal proceedings brought under the Mine Act, or to refuse to work under unsafe or unhealthy conditions.
“All miners have the right to a safe workplace, and the right to identify hazardous conditions and refuse unsafe work without fear of discrimination or retaliation," said Joseph A. Main, assistant secretary of labor for mine safety and health, in August 2012, when the agency announced an increase in the number of miners temporarily reinstated to their jobs after filing complaints of discrimination in the form of a suspension, layoff discharge or other adverse action. “Since I arrived at MSHA nearly three years ago, one of my top goals has been to educate miners about those rights and protections, and to rigorously enforce them."
Oppegard said that if Armstrong prevails, then the whistleblower protections in the Mine Safety and Health Act and the Occupational Safety and Health Act would be “essentially worthless."