MSHA Enforcement – Whose Employees Are These?

In a recently reissued policy letter, MSHA observes:

Many mine operators no longer initially hire new miners directly. Rather, operators obtain miners through contractors that furnish manpower for short or long periods.

(MSHA Program Policy Letter No. P11-V-05 entitled “Temporary Employment Contracting and Part 50 Reporting.”)

This policy letter goes on to state:

When miners are supplied by a temporary employment agency contractor, the miners perform a variety of activities at the mine and work side-by-side with miners employed by the mine operator. This arrangement is in contrast to a traditional contractor where the contractor is performing a specific task and the contractor maintains supervisory control over its employees. When a temporary employment agency or other contractor supplies miners to the operator, the mine operator supervises these miners.

Under any circumstances where the mine operator supervises miners, without regard to who is writing the paycheck to the miners, MSHA’s policy requires, in essence, that they be treated as employees of the mine operator. Thus, the mine operator must report these temporary workers under Part 50 employment reporting requirements and injury and illness reporting requirements, because the “mine operator controls and supervises these miners.”

COMMENT: Two points should be noted separate and apart from MSHA’s policy. First, these temporary worker arrangements can create civil liability exposure. If a temporary worker supervised by the mine operator is injured, the worker may be able to collect workers’ compensation from the temporary employment agency, but then sue the mine operator for negligence related to the allegedly hazardous mine conditions or for negligent supervision said to have caused or contributed to the injury. (State laws, not MSHA, control such issues, but MSHA violations against the mine operator can be a road map for such a lawsuit.)

Second, in some cases, the temporary agency supplies a supervisor for the temporary miners. In such cases, the question will always be: Is the independence of the agency supervisor in carrying out assigned projects sufficient to make the temporary agency an independent contractor for MSHA purposes – including Part 50 reporting purposes? The potential for lawsuits against the mine operator still may remain if it is alleged that the mine operator was negligent in any way that caused or contributed to injury of the temporary agency employee.