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Willa Perlmutter

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Willa Perlmutter chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group, has more than 40 years of experience as a litigator, focusing for the last 25 on defending mine operators across all sectors of the industry in administrative enforcement proceedings brought by the Mine Safety and Health Administration (MSHA) for alleged violations of the Mine Act.

In addition, she regularly counsels clients on a broad range of issues that affect their mining operations, from personnel policies and actions to compliance with a broad range of federal statutes. Willa regularly defends companies and individuals facing investigations and formal legal proceedings for alleged safety and health violations under both the Federal Mine Safety and Health Act of 1977 and the Occupational Safety and Health Act of 1970, whether those arise out of a catastrophic event, such as an accident, or in the course of a regular inspection by MSHA or Occupational Safety and Health Administration (OSHA). She has successfully defended a number of mining companies in whistleblower cases brought under the Mine Act.

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In my last column I talked about a coming shift in the analysis the Federal Mine Safety and Health Review Commission will use when it considers retaliation cases brought by the Secretary of Labor or by miners under § 105(c) of the Mine Act.  For those of you that came in late, here’s the deal:  until very recently, the miner (or MSHA, if they’re stepping in on the miner’s behalf) would have to prove first, that the miner engaged in activity protected by the Act.  Then the miner would have to prove that his employer took adverse action against him (like firing him, or reassigning him to a worse job, things like that).  Finally, the miner would have to prove unlawful motivation:  that is, that the company took the adverse action because the miner had engaged in protect activity.  (There are more details, but you don’t need them for today’s discussion.)  We call that the Pasula-Robinette analysis, after the cases in which it was first articulated.  A few months back, the U.S. Court of Appeals for the Ninth Circuit chose a different analysis for § 105(c) cases, holding that the company’s retaliatory action is unlawful if it would not have treated the miner the way it did but for the miner’s protected activity.  As I told you when we first talked about it, the Ninth Circuit’s decision was undoubtedly going to have an impact on the way the Commission decides § 105(c) cases.  I just couldn’t predict what that impact would be.  (I know, I know.  And here you thought I knew everything there was to know about this sort of thing.  Sorry.)

Welp, we still don’t know how this is going to play out.  But last month a new § 105(c) case came out of the Commission that muddied the waters even further.  That’s the case I want to talk about this month.Continue Reading Wait … What?  A Potentially Dangerous Development in § 105(c) Retaliation Cases

Let me tell you about an experience I had with a Labor Department lawyer earlier this month. It was one of those experiences that made me realize how important it is for those of us in the mining industry to have a good working knowledge of the Mine Act and how enforcement is supposed to work.

I represent a really good client, a company that mines its own materials and uses those materials in construction projects around the community. The construction side of the business is really what they do, with the rock production part being a small but necessary aspect of the operation. They generally have an excellent enforcement record when it comes to MSHA, but it would be a mistake to call them sophisticated mine operators. 

It’s a fine, close-knit group of people, out there doing their best and trying to make a living. Every contact I have with them is positive and reminds me of how much I like the people part of what I do.

One Friday afternoon a while back, some of the folks on the mining side of the operation were welding a new guardrail on the crusher feeder because an MSHA inspector required that as a condition of terminating a citation. They were installing the new guardrail in sections and using the raised bucket of a loader as a physical barricade to provide fall protection for each section that was missing as they advanced along the feeder. 

As they were getting ready to install the last section, MSHA arrived on-site to terminate the earlier citation. The three miners working on the installation were struggling a bit to stabilize the last piece of rail. Just as the inspector and the management representative got to the crusher, the loader operator jumped out of the machine and ran to lend a hand to the miners on the catwalk – leaving the loader unattended and the bucket raised.

You know what happened next. Continue Reading We Have to Know What We’re Doing, Because They Don’t Always Get It

Last week, the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) announced a new initiative to strengthen enforcement of its current respirable crystalline silica standards.  Crystalline silica is a common mineral found in sand, stone, concrete, and other materials.  When disturbed by cutting, grinding, or crushing, it becomes airborne and respirable, capable of…

Just a few short months ago, we would have thought that COVID-19 was almost behind us and that it was only a matter of time before mine operators would no longer have to worry about the spread of the disease at their worksites.  It looked like face masks and vaccinations had done their jobs, and that we had turned the corner on the pandemic.

It turns out we may have been just a tad over-optimistic.  Like every other sector, the mining industry is looking at growing numbers of positive cases.  In an environment where employees cannot work remotely; often live in small, tight-knit communities; and (particularly at underground mines) must work in close quarters, mine operators need to consider whether it makes sense to require miners to get the COVID-19 shot.

The mining industry is not alone.  While many employers initially were hesitant to institute mandatory COVID-19 vaccination policies, the recent surge driven by the Delta variant and announcements from large organizations—including the U.S. military, United Airlines, and major health care systems across the country—have caused many employers to revisit mandatory vaccination policies.
Continue Reading Mandatory Vaccination Policies for Employees: What Can (and Should) We Do?

The Federal Mine Safety and Health Review Commission (“Commission”) announced that it intends to withdraw its simplified proceedings rule effective November 25, 2019. The Commission’s Federal Register announcement is found here.

The simplified proceedings were originally published in a final rule by the Commission on December 28, 2010. The Commission’s intention was to streamline…

On Monday, September 30, the Mine Safety and Health Administration (MSHA) reinstated an Obama-era rule imposing heightened requirements for health and safety workplace examinations in surface metal and nonmetal mines. The reinstatement represents yet another volley in an already protracted regulatory process spanning two presidential administrations and multiple lawsuits.

The 2017 Obama-era rule, marking one of the administration’s final acts, required that:

  1. workplace exams had to be completed before miners begin work in the area examined;
  2. operators had to notify miners in the affected areas of conditions that might adversely affect health and safety;
  3. operators had to promptly initiate action to correct those adverse conditions;
  4. the workplace exam records had to include specific information, including, among other things, a description of all conditions found that might adversely affect health or safety and a notation as to when the corrective actions were complete; and
  5. records of the workplace exams had to be made available to MSHA and miner representatives upon request.

The rule initially went into effect on October 2, 2017. Just three days later, however, MSHA withdrew the rule, delaying the effective date to June 2018.

Following the 2017 election, the Trump administration published a revised rule that featured two key changes. First, examinations could be carried out either before work starts or as work was getting underway. Second, exam records no longer had to document adverse conditions, so long as the conditions were promptly corrected.Continue Reading MSHA Announces Reinstatement of 2017 Obama-Era Rule on Workforce Examinations

On July 18, in Hopkins County Coal, LLC v. Perez, the U.S. Court of Appeals for the Sixth Circuit issued an opinion upholding two citations and an order issued to a mine operator, Hopkins County Coal, for its refusal to turn over certain personnel records requested by the Mine Safety and Health Administration (MSHA) during a § 105(c) discrimination complaint investigation. The mine operator challenged the request for the records on several grounds, arguing that the Secretary of Labor overstepped his authority because the records were not among those that the Mine Act requires operators to keep and also that neither the miner nor MSHA had ever told the mine operator what the factual basis was for the miner’s discrimination case.
Continue Reading U.S. Court of Appeals Upholds MSHA’s Right to Obtain Personnel Records from Mine Operators

On January 23, and for the first time in nearly 40 years, the Mine Safety and Health Administration (“MSHA”) issued new rules governing the way in which metal/non-metal mine operators must conduct their regular workplace examinations. A Final Rule on “Examinations of Working Places in Metal and Nonmetal Mines” was published in the Federal Register…

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Here Stoel Rives shares insight and analysis about key mineral law developments. Drawing on a very active natural resources practice, we aim to keep readers informed about the legal aspects of news that impacts exploration and development of all things mineral.