A Wyoming miner has filed a class action lawsuit against Blackjewel LLC, for its allegedly illegal closing of its mines including the Belle Ayr and Eagle Butte mines in Campbell County, according to bankruptcy court records and his attorney.

David Engelbrecht sued under the Worker Adjustment and Retraining Notification Act for pay and benefits denied to him and others in the class of workers when the Milton, W.Va.-based Blackjewel suddenly closed the mines last week after filing for bankruptcy, according to the lawsuit filed in U.S. Bankruptcy Court for the District of Southern West Virginia on Tuesday.

"The Plaintiff was an employee of the Defendant and was terminated as part of, or as a result of a mass layoff and/or plant closing ordered by the Defendant," according to the lawsuit filed by Engelbrecht's attorney Stuart Miller of Lankeneau & Miller, LLP, of New York City.

"As such, the Defendant violated the WARN Act by failing to give the Plaintiff and other similarly situated employees of the Defendant at least 60 days' advance written notice of termination, as required by the WARN Act. As a consequence, the Plaintiff and other similarly situated employees of the Defendant are entitled under the WARN Act to recover from the Defendant their wages and ERISA  [Employee Retirement Income Security Act] benefits for 60 days, none of which has been paid."

The lawsuit says the class of Blackjewel employees is about 1,000, although the company has said it has about 1,700 employees.

Miller said a lawsuit filed under the WARN Act needs an affected facility with a certain minimum number of employees, and the mines in Campbell County meet that standard. Blackjewel's approximately 30 mines in West Virginia, Virginia and Kentucky are smaller and it will take a while to determine how many of them may be brought into the class action lawsuit. So the 1,000 figure will stand for now as an estimate of the number in the class, he said.

Technically speaking, Miller said the miners who were sent home have not been officially terminated, but again, that's a technicality.

"I believe that they have suffered an employment loss within the meaning of the WARN Act," he said. "If an employee is laid off, and there is no reasonable expectation of recall, and they don't get recalled, then the termination date is when they are first put on a layoff.

"Here, in my view, the company is being cute in saying, 'well, we haven't laid you off yet; we haven't terminated your employment, but we're putting you on layoff.'

"But given the circumstances -- the company just got $5 million to clean the place up .... there's no possibility that there will be a recall.

"The only hope there is they may try to sell the company. The sale of the company at this point would still be a violation of the WARN Act, because there would have been a break in the employment and the employees would have been terminated from Blackjewel, even if some of them or all of them get rehired by another company."

On July 1, Blackjewel LLC, announced that it could not get a $20 million loan from creditor United Bank, and filed for Chapter 11 bankruptcy business reorganization, which keeps a company's creditors at bay while it continues to operate and resolve its financial problems.

After another failed attempt to secure $20 million in emergency funding, it secured $5 million to implement security and firefighting measures at the mines. It is not enough to reopen the mines.

The class action lawsuit is the best way to deal with the aggrieved workers. It would avoid numerous lawsuits from individual employees, conserve judicial resources, and be the most efficient way to resolve the WARN rights of the employees.

Specifically, Engelbrecht and the other employees want to recover damages including lost wages, salaries, commissions, bonuses, accrued holiday and vacation pay, and 401(k) contributions; health, medical and other fringe benefits; and medical expenses that would have been paid for under the benefit plans.

Miller said Blackjewel will file an answer to the class action lawsuit, and the bankruptcy court will set a discovery schedule.

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