§ 938. Miners suffering from pneumoconiosis;
discrimination prohibited
(a) Mine operators
No operator shall discharge or in any other way discriminate
against any miner employed by him by reason of the fact that such
miner is suffering from pneumoconiosis. No person shall cause or
attempt to cause an operator to violate this section. For the
purposes of this subsection the term 'miner' shall not include
any person who has been found to be totally disabled.
(b) Determination by Secretary; procedure
Any miner who believes that he has been discharged or
otherwise discriminated against by any person in violation of
subsection (a) of this section, or any representative of such
miner may, within ninety days after such violation occurs, apply
to the Secretary for a review of such alleged discharge or
discrimination. A copy of the application shall be sent to such
person who shall be the respondent. Upon receipt of such
application, the Secretary shall cause such investigation to be
made as he deems appropriate. 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
violation. The parties shall be given written notice of the time
and place of the hearing at least five days prior to the hearing.
Any such hearing shall be of record and shall be subject to
section 554 of
title 5. Each administrative law judge presiding under this
section and under the provisions of subchapters I, II and III of
this chapter shall receive compensation at a rate determined
under section 5372 of title 5.
Upon receiving the report of such investigation, the Secretary
shall make findings of fact. If he finds that such violation did
occur, he shall issue a decision, incorporating an order therein,
requiring the person committing such violation to take such
affirmative action as the Secretary deems appropriate, including,
but not limited to, the rehiring or reinstatement of the miner to
his former position with back pay. If he finds that there was no
such violation, he shall issue an order denying the application.
Such order shall incorporate the Secretary's findings therein.
(c) Costs and penalties
Whenever an order is issued under this subsection granting
relief to a miner at the request of such miner, a sum equal to
the aggregate amount of all costs and expenses (including the
attorney's fees) as determined by the Secretary to have been
reasonably incurred by such miner for, or in connection with, the
institution and prosecution of such proceedings, shall be
assessed against the person committing the violation.