Railroad Employees Can Expect FRSA Whistleblower Protections
2015 was a big year for whistleblowers in the railroad industry, as the Occupational Health and Safety Administration (OSHA) responded to numerous complaints of rail companies violating the anti-retaliation provisions of the Federal Railroad Safety Act (FRSA). The FRSA protects employees who report safety and security concerns and workplace injuries from unlawful employment retaliation, including actions a company may take to deny, delay or interfere with an employee’s medical treatment.
The smooth function of railroads is crucial for commuters and employees, and robust whistleblower protections help maintain railroad safety by ensuring that workers in the railroad industry can report safety issues without fear of reprisal. Over the year, a number of railroad whistleblowers have succeeded before the Department of Labor – and, in at least once case, in federal court – in receiving compensation for the unlawful retaliation they suffered for reporting workplace safety issues. We have summarized some of those victories below.
This post, made at the end of 2014, details a railroad whistleblower retaliation case in which a former employee of Metro-North Commuter Railroad Company was threatened and harassed after he reported a knee injury he suffered on the job. OSHA ordered the company to pay $260,000 for its violation of the FRSA’s whistleblower protection provisions. The award is particularly noteworthy because, although OSHA awarded just $10,000 in compensatory damages, it awarded the employee $250,000 in punitive damages, the maximum allowable amount.
This March Department of Labor press release discussed Union Pacific Railroad, a company with a long history of whistleblower retaliation. In another of the company’s continuing encounters with OSHA, the agency found that Union Pacific had violated the FRSA when it disciplined an employee who reported a workplace injury and sought medical attention. Before his injury, the 35-year-old freight engineer had never faced disciplinary action. OSHA ordered the company to pay $350,000 in punitive damages, compensatory damages and attorneys’ fees. It also directed Union Pacific to restore the employee’s personnel record to its state before the retaliation. In an effort to curb further violations of federal laws, OSHA also ordered the company to inform its employees of their whistleblower rights.
As detailed in this April Department of Labor press release, OSHA yet again ordered that Union Pacific Railroad pay damages to an employee it terminated for reporting a workplace injury. OSHA held that Union Pacific violated the FRSA when it retaliated against the employee for reporting an injury that occurred when he was lifting materials and equipment, as the disclosure of being hurt on the job constitutes protected activity under the FRSA. The railroad was ordered to pay $100,000 to the employee in punitive and compensatory damages. OSHA reported in its press release that the company has been the subject of more than 200 whistleblower retaliation complaints since 2001.
This blog reported on an OSHA finding that Burlington Northern Santa Fe Railway unlawfully retaliated against an employee after he reported a knee injury suffered on the job. The company responded to the employee’s report by terminating him. The employee’s injury report, however, constitutes protected activity under the FRSA, and OSHA ordered the company to pay $536,063 in back pay, damages, and attorneys’ and other fees.
As discussed in this July blog, a federal jury found in favor of Michael Elliott, a former locomotive engineer with Burlington Northern Santa Fe who was terminated after he reported that overgrown vegetation was blocking signals between rail tracks. Mr. Elliott took his safety complaints to the Federal Railroad Administration, which ultimately found more than 375 regulatory violations over the course of its subsequent investigation. The FRSA prohibits such retaliation, and Mr. Elliott filed a charge with OSHA alleging a violation of the FRSA’s whistleblower protection provisions. After the Labor Department failed to issue a final ruling on the charge within 210 days, Mr. Elliott “removed” his complaint to federal court. When all was said and done, the jury awarded Mr. Elliott $1.25 million in damages, back pay, front pay and punitive damages.
This November press release from OSHA announced its final rule establishing proper procedures and timelines for dealing with employee retaliation complaints regarding the National Transit Systems Security Act and the FRSA. The rule comes after input on the 2010 interim final rule and incorporates the public comments submitted to the agency as well as recent case law. OSHA also released a fact sheet on transportation and railroad whistleblower protections in the hopes that improving employees’ and employers’ access to information will help both parties comply with OSHA procedures.
There is no reason to believe that the Department of Labor will slow down its aggressive crackdown on retaliation in the railroad industry in 2016. While certain rail companies appear to have adopted an unfortunate practice of routinely retaliating against railroad employees who report on-the-job injuries, OSHA has made clear that it will stand beside conductors and other employees who are injured on the job. The looming question for 2016 thus becomes not whether OSHA will continue to punish companies that retaliate against railroad employees who report wrongdoing and on-the-job injuries but whether rail companies will finally get the message.