(a)(1) In determining the identity of a responsible operator under
this part, the terms ``employ'' and ``employment'' shall be construed
as broadly as possible, and shall include any relationship under which
an operator retains the right to direct, control, or supervise the work
performed by a miner, or any other relationship under which an operator
derives a benefit from the work performed by a miner. Any individuals
who participate with one or more persons in the mining of coal, such as
owners, proprietors, partners, and joint venturers, whether they are
compensated by wages, salaries, piece rates, shares, profits, or by any
other means, shall be deemed employees. It is the specific intention of
this paragraph to disregard any financial arrangement or business
entity devised by the actual owners or operators of a coal mine or coal
mine-related enterprise to avoid the payment of benefits to miners who,
based upon the economic reality of their relationship to this
enterprise, are, in fact, employees of the enterprise.
(2) The payment of wages or salary shall be prima facie evidence of
the right to direct, control, or supervise an individual's work. The
Department intends that where the operator who paid a miner's wages or
salary meets the criteria for a potentially liable operator set forth
in Sec. 725.494, that operator shall be primarily liable for the
payment of any benefits due the miner as a result of such employment.
The absence of such payment, however, will not negate the existence of
an employment relationship. Thus, the Department also intends that
where the person who paid a miner's wages may not be considered a
potentially liable operator, any other operator who retained the right
to direct, control or supervise the work performed by the miner, or who
benefitted from such work, may be considered a potentially liable
operator.
(b) This paragraph contains examples of relationships that shall be
considered employment relationships for purposes of this part. The list
is not intended to be exclusive.
(1) In any case in which an operator may be considered a successor
operator, as determined in accordance with Sec. 725.492, any employment
with a prior operator shall also be deemed to be employment with the
successor operator. In a case in which the miner was not independently
employed by the successor operator, the prior operator shall remain
primarily liable for the payment of any benefits based on the miner's
employment with the prior operator. In a case in which the miner was
independently employed by the successor operator after the transaction
giving rise to successor operator liability, the successor operator
shall be primarily liable for the payment of any benefits.
(2) In any case in which the operator which directed, controlled or
supervised the miner is no longer in business and such operator was a
subsidiary of a parent company, a member of a joint venture, a partner
in a partnership, or was substantially owned or controlled by another
business entity, such parent entity or other member of a joint venture
or partner or controlling business entity may be considered the
employer of any employees of such operator.
(3) In any claim in which the operator which directed, controlled
or supervised the miner is a lessee, the lessee shall be considered
primarily liable for the claim. The liability of the lessor may be
established only after it has been determined that the lessee is unable
to provide for the payment of benefits to a successful claimant. In any
case involving the liability of a lessor for a claim arising out of
employment with a lessee, any determination of lessor liability shall
be made on the basis of the facts present in the case in accordance
with the following considerations:
(i) Where a coal mine is leased, and the lease empowers the lessor
to make decisions with respect to the terms and conditions under which
coal is to be extracted or prepared, such as, but not limited to, the
manner of extraction or preparation or the amount of coal to be
produced, the lessor shall be considered the employer of any employees
of the lessee.
(ii) Where a coal mine is leased to a self-employed operator, the
lessor shall be considered the employer of such self-employed operator
and its employees if the lease or agreement is executed or renewed
after August 18, 1978 and such lease or agreement does not require the
lessee to guarantee the payment of benefits which may be required under
this part and part 726 of this subchapter.
(iii) Where a lessor previously operated a coal mine, it may be
considered an operator with respect to employees of any lessee of such
mine, particularly where the leasing arrangement was executed or
renewed after August 18, 1978 and does not require the lessee to secure
benefits provided by the Act.
(4) A self-employed operator, depending upon the facts of the case,
may be considered an employee of any other operator, person, or
business entity which substantially controls, supervises, or is
financially responsible for the activities of the self-employed
operator.
