When you think about mining and work injuries, you probably think about coal miners in West Virginia and Kentucky.
But sand mines line the Platte River valley in Nebraska. Workers in these mines are vulnerable to silicosis, a lung disease, which would be covered under workers’ compensation as an occupational disease in Nebraska. (See Neb. Rev. Stat. 48-151(3))
So what lead me to post about sand mining in Nebraska?
Last month I was staying in Lexington, Nebraska for an early morning workers’ compensation trial against Tyson. The case was a prototypical packinghouse case involving an immigrant with an overuse injury. To the extent that workers’ compensation in Nebraska merits any media discussion, it’s usually in the context of the immigrant packinghouse workers.
I took a break from my final pre-trial prep to get coffee in the breakfast room. Among the din of business travelers and Fox and Friends on the big screen, I noticed investigators from the federal MSHA or Mine Safety and Health Administration.
I identified the crew as MSHA employees from the logos on their binders. If not for that, they were indistinguishable from the mostly blue collar and agribusiness types who frequent the hotel.
I struck up a conversation with one of the investigators. As I suspected they were in central Nebraska looking at sand mining. I told them I was in town trying a workers’ compensation case. I gave them some encouraging words about their work. One of the agribusiness types shot me a dirty look.
Workers’ compensation laws pay workers for work injuries. This helps encourage workplace safety as employers bear the cost of workplace injuries. Government regulators do the same thing through the threat of civil penalties and sometimes criminal prosecution.
Anti-retaliation protections for miners in Nebraska
The Mining Safety and Health Administration was created by the Mining Safety and Health Act. The MSHA has a whistleblower provision for miners reporting unsafe or hazardous conditions. Nebraska also has a general whistleblower law which would protect mining employees in Nebraska. Sand mining is considered environmentally hazardous and it poses a risk to groundwater. In some circumstances, complaints about the environmental impact of sand mining could be protected activity as well.
The MSHA, separation of powers and the “deep state”
On my way to trial, I felt good knowing that federal workplace safety laws were still being enforced. I’ve written a lot about the role of executive branch in interpreting and enforcing laws. Executive agencies have a lot of leeway in how they enforce laws. But Executive agencies still have to follow the laws passed by Congress. Federal employees who are enforcing federal workplace safety laws aren’t acting as a deep state. They are obeying the dictates of a co-ordinate branch of government – Congress. Congress passes laws and the courts fine tune the laws. Like the judicial branch, the Executive Branch fine tunes laws through guidance and regulation. Executive agencies have discretion about how to enforce laws as well. But on some level the executive branch has to enforce the laws written by Congress. It doesn’t matter if Gene Scalia or Tom Perez is the Secretary of Labor, if an employer is disregarding safety standards or wage laws they may have to contend with enforcement from the Department of Labor.
Regardless of who is enforcing labor laws, citizens and non-citizens alike have a right to access the judicial system with the help of their lawyer if their employer is violating their rights.