Current through Register Vol. XLI, No. 24, June 14, 2024
Section 56-3-19 - Discrimination19.1. No person shall discharge or in any other way discriminate against, or cause to be discharged or caused to be discriminated against, any miner or any authorized representative of miners by reason of the fact that the person believes or knows that such miner or representative:19.1.1. Has notified the director, or his/her authorized representative, or an operator, directly or indirectly, of any alleged violation or danger;19.1.2. Has filed, instituted or caused to be filed or instituted any proceeding under chapter 22A of the code or this rule;19.1.3. Has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of chapter 22A of the code or this rule.19.2. No miner or authorized representative of any miner shall be discharged or in any other way discriminated against or caused to be discriminated against because a miner or authorized representative of any miner has performed an act under subsection 19.1.1., 19.1.2. or 19.1.3. above.19.3. Any miner or an authorized representative of any miner who believes that he or she has been discharged 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 (30) days after such violation occurs, apply to the board of appeals for a review of such alleged discharge, discrimination, or failure to compensate. 19.3.1. A copy of the application shall be sent to the operator who shall be identified as the respondent.19.3.2. Upon receipt of such application, the board of appeals shall cause such investigation to be made as it deems appropriate.19.3.3. Such 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 alleged violation.19.3.4. The parties shall be given written notice of the time, date and place of the hearing at least five (5) days prior to the hearing.19.3.5. Mailing of the notice of hearing to the charged party at the party's last address of record as reflected in the records of OMHST is deemed adequate notice to the charged party.19.3.6. Such notice shall be by certified mail, return receipt requested.19.3.7. Any such hearing shall be of record.19.3.8. Upon receiving the report of such investigation, the board of appeals shall issue an order as set forth below:19.3.8.a. If the board of appeals finds that a violation did occur, then it shall issue a decision within forty-five (45) days, incorporating an order therein, requiring the person committing such violation to take affirmative action to abate the violation as the board of appeals deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner or authorized representative of any miner to his/her former position with back pay, and also pay compensation for the idle time as a result of a withdrawal order.19.3.8.b. If the board of appeals finds that there was no violation, then it shall issue an order denying the application. Such order shall incorporate the board of appeal's findings therein.19.3.9. If the hearing under this section relative to discharge is not completed within forty-five (45) days of the date of discharge due to delay caused by the operator, then the miner shall be automatically reinstated until the final determination.19.3.10. If the hearing is not completed within forty-five (45) days of the date of discharge due to delay caused by the board if appeals, then the board of appeals may, at its option, reinstate the miner until the final determination.19.3.11. If the hearing is not completed within forty-five (45) days of the date of discharge due to delay caused by the miner, then the board of appeals shall not reinstate the miner until the final determination.19.4. 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 of appeals to have been reasonably incurred by the applicant for, or in connection with, the institution and prosecution of said proceedings, shall be assessed against the person committing such violation.