Senate Bill No. 166
(By Senator White and Hunter)
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[Introduced January 10, 2008; referred to the Committee on the
Judiciary.]
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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; or (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 to be made as it deems
appropriate. The investigation will commence within fifteen days
of the appeals board's receipt of the complaint, and if those
conducting the investigation find that such complaint was not
frivolously brought, the appeals board, on an expedited bases 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 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
violation, it shall issue an order denying the application. Such
order shall incorporate the board's finding therein. 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.