Excavations and trenches have become so commonplace on worksites that some employers and employees have developed a sense of complacency with some of the most basic requirements of excavation safety. To counter this, the Occupational Safety and Health Administration (“OSHA”) initiated a National Emphasis Program (“NEP”) on Trenching and Excavation, on October 1, 2018, to increase OSHA’s education and enforcement efforts regarding trenching and excavation operations. Under this NEP, OSHA Compliance Officers can inspect trenching operations whenever they observe an open trench or excavation, regardless of whether there is a violation.
Section 105(c)(1) of the Federal Mine Safety and Health Act (“Mine Act”) provides “No person shall discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of any miner.” 30 U.S.C. § 815(c)(1). In Secretary on behalf of McGary et al. v. Marshall County Coal Co. et al., 38 FMSHRC 2006(Rev. Comm. Aug. 2016) & 40 FMSHRC 261 (Rev. Comm. March 2018), the CEO held a series of “Awareness Meetings” with the work force, specifically requesting that when employees filed anonymous hazard complaints to the Mine Safety and Health Administration (“MSHA”), they report those same conditions to the operator. Complaints were filed with MSHA after these meetings and a hearing was held in front of an Administrative Law Judge (“ALJ”) to determine whether these meetings interfered with miners’ rights.
The legal basis of interference is in Section 105(c)(1) of the Federal Mine Safety and Health Act (“Mine Act”) - “No person shall discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of any miner.” 30 U.S.C. §815(c)(1). The interference test has developed into a two-part evaluation of an operator’s reaction to protected activity or treatment of miners’ rights. The real question is whether MSHA must show if an operator’s actions were motivated by protected activity or were intended to interfere with miners’ rights to establish an interference claim.