H. B. 2441
(By Delegates Hamilton, Longstreth,
Guthrie, M. Poling, Argento, Talbott,
Marshall, Martin and Staggers)
[Introduced February 16, 2009; referred to the
Committee on Energy, Industry and Labor, Economic
Development and Small Business then the Judiciary.]
A BILL to amend and reenact §22A-1-22 of the Code of West Virginia,
1931, as amended, relating to the strengthening of protections
for whistleblowers of unsafe working conditions in mines.
Be it enacted by the Legislature of West Virginia:
That §22A-1-22 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING;
ADMINISTRATION; ENFORCEMENT.
§22A-1-22. Discrimination.
(a) No person shall discharge or in any other way discriminate
against, or cause to be discharged or discriminated against or
otherwise interfere with the exercise of the statutory rights of
any miner, or any authorized representative of miners, or applicant
for employment in any coal or other mine because by reason of the
fact that the person believes or knows that such miner, or
representative or applicant for employment: (1) Has notified the director, his or her authorized representative, representative of
miners or an operator, directly or indirectly, of any alleged
violation or danger; (2) has filed, instituted or caused to be
filed or instituted any proceeding under or related to this law;
(3) has testified or is about to testify in any proceeding
resulting from the administration or enforcement of the provisions
of this law or any related law; (4) has refused to work in an area
or under conditions which he or she believes to be unsafe; or (5)
has exercised on behalf of himself or herself or others any right
afforded under or related to this law. No miner or representative
shall be discharged or in any other way discriminated against or
caused to be discriminated against because a miner or
representative has done (1), (2), or (3) above.
(b) Any miner, or a representative of miners, or applicant for
employment who believes that he or she has been discharged,
interfered with or otherwise discriminated against, or any miner
who has not been compensated by an operator for lost time due to
the posting of a withdrawal order, may, within thirty sixty days
after such violation occurs, apply to file a complaint with the
appeals board for a review of such alleged discharge,
discrimination or failure to compensate. A The appeals board shall
forward a copy of the application shall be sent to such person who
shall be to the respondent. Upon receipt of such application, the
appeals board shall cause such investigation investigate to be made as it deems believes appropriate. The investigation will commence
within fifteen days of the appeals board's receipt of the
complaint, and if those conducting the investigation find the
complaint was not frivolously brought, the appeals board, on an
expedited basis shall order immediate reinstatement of the miner
pending final order on the complaint. Such The investigation shall
provide an opportunity for a public hearing at the request of any
party to enable the parties to present information relating to such
violation. The parties shall be given written notice of the time
and place of the hearing at least five days prior to the hearing.
Mailing of the notice of hearing to the charged party at the
party's last address of record as reflected in the records of the
office is adequate notice to the charged party. Such notice shall
be by certified mail, return receipt requested. Any such hearing
shall be of record. Upon receiving the report of such
investigation, the board shall make findings of fact. If it finds
that such violation did occur, it shall issue a decision within
forty-five days, incorporating an order therein, requiring the
person committing such violation to take such affirmative action to
abate the violation as the board deems believes appropriate,
including, but not limited to, the rehiring or reinstatement of the
miner or representative of miners to his or her former position
with back pay with interest, and also pay compensation for the idle
time as a result of a withdrawal order. If it finds that there was no such no violation, it shall issue an order denying the
application. Such order shall and incorporate the board's finding
therein. in the order. If the proceedings under this section
relative to discharge are not completed within forty-five days of
the date of discharge due to delay caused by the operator, the
miner shall be automatically reinstated until the final
determination. If such proceedings are not completed within
forty-five days of the date of discharge due to delay caused by the
board, then the board may, at its option, reinstate the miner until
the final determination. If such proceedings are not completed
within forty-five days of the date of discharge due to delay caused
by the miner the board shall not reinstate the miner until the
final determination.
(c) Whenever an order is issued under this section, at the
request of the applicant, a sum equal to the aggregate amount of
all costs and expenses including the attorney's fees as determined
by the board to have been reasonably incurred by the applicant for,
or in connection with, the institution and prosecution of such
proceedings, shall be assessed against the person committing such
violation.
NOTE: The purpose of this bill is to further protect
whistleblowers for reporting the unsafe working conditions in
mines.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.