The Sixth Circuit Court of Appeals recently held that MSHA could demand a miners’ personnel records to assist an investigation into a worker’s discrimination complaint. In Hopkins Coal, an operator refused to provide personnel records to an MSHA investigator on the grounds the agency had not identified any protected activity the miner engaged in. The request for documents included the personnel records for the complainant and other employees with similar discipline to that of the complainant.
The court of appeals held that MSHA had the right to the requested documents, even though those records were not required to be kept under the Mine Act, and that the files were “reasonably required” under Section 103(h) to conduct the investigation.
As noted in the dissent by one Circuit Judge, this records demand amounted to a “fishing expedition” where MSHA sought documents to support the miner’s complaint without the miner’s allegations being fully articulated. Essentially, MSHA’s document requests (particularly those related to the personnel records of other miners) amounted to an effort to help the miner allege a successful whistleblower complaint.