Today’s New York Times’ editorial No Friend to Workers provides just a few examples of how Labor Secretary Elaine Chao has made a sham of our nation’s worker protection laws.  The examples come from a GAO report about the Labor Department’s Wage and Hour Division:  One case involved child-labor violations but the matter was closed because the investigators couldn’t track down the employer (but GAO easily found him); another involved a worker’s complaint about his employer’s failure to pay his legally-due overtime wages.  The complaint languished at DOL for 17 months, past the statute of limitations.  Yep, the worker got screwed.

Lest anyone thinks this ineptitude is unique to DOL’s Wage and Hour division, I’ve my own example—a double doozy involving the combined incompetence of MSHA and DOL’s own Inspector General. 

Mr. Michael Fulmer, a coal miner diagnosed with black lung disease, exercised his statutory rights under the Mine Act, asking to be assigned to less-dusty job.  (It was a way for him to continue earning a living while trying not to damage his lungs any further.)  When his employer started monkeying around with his schedule and re-assigning him to more dusty coal-mining tasks, Fulmer couldn’t tolerate it any longer.  He decided to complain to MSHA (as is his right under Section 105(c) of the Mine Act) and met with an MSHA investigator in July 2006.  At no time did the inspector mention to Mr. Fulmer that he only had 60 days to file his official complaint.  Mr. Fulmer decided to think it over for a few weeks.  In September 2006, he scheduled an appointment with the MSHA investigator to file his complaint.  Again, he was not informed about the 60-day deadline, which by now had passed.  The MSHA investigator cancelled a scheduled-September meeting, and another one scheduled for October.  

Finally, when Mr. Fulmer met in early November 2006 with the MSHA investigator and an MSHA supervisor, they asked him to wait to file is discrimination complaint until AFTER the upcoming hunting season and holidays.  Mr. Fulmer complied and his complaint was not filed until January 3, 2007.  Needless to say, Mr. Fulmer complaint was dismissed by the Mine Safety and Health Review Commission.

Oh, but it gets worse.

Nathan Fetty, an attorney with the non-profit Appalachian Center who has been assisting Mr. Fulmer, was appalled by the MSHA officials’ mishandling of the coal miner’s discrimination case.  (By the way, Mr. Fulmer is also being treated for cancer.)  Fetty sent a letter (June 20 2008 ) to DOL’s Office of the Inspector General (IG) to make the IG aware “of the troubling manner by which the special investigators handled this matter” and the possible “existence of a systemic problem meriting the IG’s attention.”

The IG promptly sent a letter back to Mr. Fetty, stating the following:

“…the OIG primarily investigates allegations of fraud, waste or abuse in DOL programs and operations.  The OIG generally does not initiate investigations or intervene in matters related to the handling, processing, and/or adjudictaion of workers’ compensation claims, benefit determinations, or retaliation claims, absent evidence of fraud or serious misconduct involving DOL officials. 

Hello! Isn’t it a waste and abuse of taxpayer dollars when federal employees are paid to know the law and protect the rights of miners, and they fail on MULTIPLE ocassions to provide the most fundamental information, such as the deadline for filing a discrimination complaint????  Doesn’t this failure constitute serious MISCONDUCT?

The IG’s letter goes on:

“While Mr. Fulmer may have been provided with misinformation by MSHA officials, there is no evidence that this was done intentionally or for some improper reason.”

The point is not whether it was done intentionally.  It’s that the IG should want to make sure that this ERROR doesn’t happen again.  Sheesh….what’s an IG office for anyway. 

The IG’s letter suggests that Mr. Fetty

“…may wish to contact senior MSHA officials to express your concern about the actions of these particular MSHA employees.”

Pleeeze!  If he had thought that was going to do any good, he would have done it.  That’s why he contacted YOU—Mr. IG man.

Just in case this whole thing doesn’t completely turn your stomach round, the MSHA special investigator who failed in his responsibility to provide Mr. Fulmer with the most basic information about filing a discrimination complaint, was the very same individual who failed in the accident investigation of Mr. Chad Cook (more here, and here)

Matters of this kind should be the business of DOL’s IG:  Patterns of evidence that MSHA’s senior managers are not ensuring that their own staff are competent to do their jobs.

I agree with the NYTimes editorial’s conclusion:

“the first step in getting the nation’s laws enforced again will be entrusting enforcement people to people who believe in them”

AND we also need independent IG offices who don’t just give lip service to identifying “waste, fraud and abuse.”

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Celeste Monforton, MPH worked at DOL from 1991-2001. 

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