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This week, OSHA found that Norfolk Southern Railway Co., a major transporter of commodities based in Norfolk, Virginia, owed over $800,000 in damages to three whistleblowers. These actions are the most recent of a number of OSHA decisions against Norfolk Southern Railway Co. in the past year. OSHA found that the company continues to retaliate against employees for reporting work-related injuries and has created a chilling effect on the railroad industry.

On August 14, 2009, the first of the three whistleblowers was terminated after reporting an injury as a result of being hit by the company’s gang truck. The railroad charged the employee with improper performance of duties. As the only employee actually injured in the incident, the whistleblower was the only one to report an injury and the only employee fired. OSHA ordered the company to pay punitive damages of $200,000, compensatory damages of $110,852, and attorney’s fees of $14,325.

The second whistleblower was was terminated on March 31, 2010, after reporting an injury as a result of a fall. After an investigative hearing, which OSHA found to be flawed and intentionally biased against the employee, the company charged him with falsifying his injury. OSHA ordered $150,000 in punitive damages, $50,000 in compensatory damages, and $7,375 in attorneys fees.

The final employee was terminated on July 22, 2010, after reporting a head injury after falling down a flight of stairs. The day before this injury occurred, the employee had been declared an excellent employee. In the previous 35 years, he had not missed any work time due to injuries. Norfolk Southern Railway Co. decided that he had falsified the injury report, failed to promptly report the injury, and had made false and conflicting statements. OSHA found that the company’s hearing on the matter had been flawed and ordered the railroad to pay the employee $175,000 in punitive damages, $76,732.27 in back wages, and $17,993.43 in compensatory damages.

“Firing workers for reporting an injury is not only illegal, it also endangers all workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury can occur,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “To prevent more injuries, railroad workers must be able to report an injury without fear of retaliation. The Labor Department will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights. Employers found in violation will be held accountable.”

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The U.S. Department of Labor (DOL) has announced a settlement with Modern Oil Company, the operator of the Kwick Stop convenience store in Shawnee, Oklahoma. The lawsuit alleged that after OSHA investigated a workplace safety complaint a store in Shawnee, Oklahoma, management grilled the three employees of that store until it determined who called OSHA.  Management then fired the identified whistleblower. The employee was a cashier at the convenience store who complained first to management, and then to OSHA about how the tall stacks of liquor bottles posed a hazard. Whistleblower issues can arise in any type of workplace.

Under Section 11(c) of the OSH Act, whistleblowers do not own any cause of action themselves.  Only the Secretary of Labor can file lawsuits to recover damages for workplace health and safety whistleblowers. Luckily, the Solicitor of Labor decided to file this lawsuit.  It was filed July 15, 2010, and settled on March 1, 2011.  It is case number 5:10-cv-00748-M in the U.S. District Court for the Western District of Oklahoma. This blog reported last August about DOL's decision to file this lawsuit.

The settlement provides that the whistleblower will be reinstated and receive $17,000 in back pay. The court's consent judgment also includes a restraining order that bars the company from violating OSH Section 11(c) in the future, and requires the company to post a notice about the right of all employees to raise concerns about health and safety.

"Every employee has the right to a safe and healthful workplace, and no one should ever fear losing a job or facing retaliation by an employer for exercising that right," said William A. Burke, OSHA's acting regional administrator in Dallas, Texas. "This settlement underscores the Labor Department's commitment to protect workers who have been treated unfairly simply for doing the right thing."

Congress could do the right thing and modernize Section 11(c) by giving workplace safety whistleblowers the same rights that environmental, trucking, nuclear, aviation, food safety, and corporate finance whistleblowers have enjoyed for years. Read my prior pleas for this reform here, here here and here.

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The Robert C. Byrd Mine Safety Protection Act included provisions to give workers modern whistleblower protections in mines, and in all workplaces governed by the Occupational Safety and Health Administration (OSHA). It would fix the terribly weak protections of Section 11(c) of the OSH Act. On Wednesday, Rep. George Miller (D-CA) brought the measure to a House floor vote through a motion to suspend the rules. The procedure requires that two thirds of the House agree. The motion received a majority of support, but not the two thirds required. It failed with 214 in favor and 193 against. Below is a link to Rep. Miller's floor speech on the bill.

The need for Congressional modernization of Section 11(c) was the subject of my letter this month to the editors of Scientific American. Secretary of Labor Hilda Solis issued a statement yesterday decrying the House's failure to pass the bill. "Every day the lives of miners are needlessly being put at risk," Solis said. "That should be unacceptable to every single member of Congress. All workers deserve to come home safe at the end of a shift. I urge every legislator to join the president and me in committing to bringing miners the safety reforms they deserve." The Charleston Gazette said, "It's a shame."

So, why did Rep. Miller use this procedure that requires a supermajority? It is evident that the bill will pass under normal procedures. However, those normal procedures require approval and scheduling by the Rules Committee. If this measure is not going to pass the Senate anyway, why bother doing anything other than record the votes of every member. The results were telling. All Republicans except one (Rep. Jones, NC) voted against the motion. Twenty-five (25) Democrats also voted against the motion, including two from Ohio who had strong support from labor unions (Reps. Boccieri and Ryan). Check out how your representative voted here. About five thousand Americans are dying every year on the job. I agree with the Gazette. It's a shame.

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The December 2010 issue of Scientific American, page 12,  features my letter to them about the Protecting America's Workers Act (PAWA), HR 2067 and S 1580.  I appreciate the way that the editors enlarged this quote on their letters page:  "When whistleblowers speak truth to power, they could finally hold employers accountable."

Since I wrote my letter, I learned that the Department of Labor, Bureau of Labor Statistics, has released the number of workplace fatalities for 2009. In that year, only 4,340 Americans died on the job. This is a 17% drop from the prior year, showing the effects of the recession. The recession was particularly hard on the construction industry which which has historically contributed more than its share of fatalities.

Also, although there has been no advancement of the Protecting America's Workers Act (PAWA), HR 2067 and S 1580, Rep. George Miller was successful in getting the Robert C. Byrd Miners Safety and Health Act passed by the House Judiciary Committee. It is H.R. 5663. Section 701 of this bill is equivalent to PAWA's modernization of Section 11(c) of the Occupational Safety and Health Act. It would, if passed, finally give workplace health and safety whistleblowers a meaningful protection from retaliation. The companion bill in the Senate, S. 3671, is still in committee. I imagine that during the lame duck session, Rep. Miller will be looking for a must-pass bill to which he can attach the Robert D. Byrd Miners Safety and Health Act. If the Senate would concur, then our workplaces would become safer through the protection of safety whistleblowers.

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In an editorial yesterday, the Charleston Gazette of West Virginia called on Congress to pass a law to modernize the legal protections for workplace health and safety whistleblowers. "Whistleblowers protect the health and safety of working Americans by exposing unsafe conditions," the editorial begins. It then recounts how the Government Accountability Office (GAO) report found that the Department of Labor's whistleblower protection program could do a better job of protecting whistleblowers. One could also add the DOL's Inspector General's report. Recalling the Upper Big Branch mine disaster, and the Deepwater Horizon explosion, the editorial suggests, "If whistleblowers had been protected, those tragedies might have been prevented." It then quotes Rep. George Miller, D-Calif., as saying, "I will continue to work with my colleagues and the Secretary of Labor to modernize anti-retaliation protections as part of the Robert C. Byrd Miners Safety and Health Act." I remember attending a hearing on the Protecting America's Workers Act (PAWA) that would modernize Section 11(c) of the Occupational Safety and Health Act (OSH Act).  If including PAWA in the Robert C. Byrd Miners Safety and Health Act will get it passed, I can be all for that. Rep. Miller introduced H.R.5663, the Robert C. Byrd Miners Safety and Health Act, last July. The House Judiciary Committee reported it out on July 29, 2010. As reported out, Section 701 of the bill contains a gold-standard of whistleblower protection to replace Section 11(c) of the old OSH Act.  Sen. Jay Rockefeller of West Virginia has introduced a companion bill, S. 3671.  It is still waiting for action by the Senate committee. "Passing stronger whistleblower protections would be a tribute to West Virginia's late senator," the Charleston Gazette says.  I agree.

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The Occupational Safety and Health Administration (OSHA) has announced that it filed a lawsuit in Oklahoma City against Modern Oil Company, the operator of 30 Kwick Stop convenience stores.  The lawsuit alleges that after OSHA investigated a workplace safety complaint at one of its stores in Shawnee, Oklahoma, management grilled the three employees of that store until it determined who called OSHA.  Management then promptly fired the identified whistleblower. The employee was a cashier at the convenience store who complained first to management, and then to OSHA about how the tall stacks of liquor bottles posed a hazard.This case is an example of how whistleblower issues can arise in any type of workplace.

Under Section 11(c) of the OSH Act, whistleblowers do not own any cause of action themselves.  Only the Secretary of Labor can file lawsuits to recover damages for workplace health and safety whistleblowers. OSHA's decision to seek such a lawsuit is equivalent to an OSHA determination that retaliation occurred.   Luckily, the Solicitor of Labor decided to file this lawsuit.  It was filed July 15, 2010.  It is case number 5:10-cv-00748-M in the U.S. District Court for the Western District of Oklahoma. By now, the company would have received the lawsuit. I called the lawyer listed for Modern Oil Company and he told me that he no longer represents them. OSHA is seeking reinstatement, back pay, compensatory damages, and punitive damages on behalf of the whistleblower.

If Congress would pass the Protecting America's Workers Act (PAWA), H.R. 2067, then the Solicitor of Labor would not have to file Section 11(c) lawsuits, and OSHA could just issue orders for these remedies, subject to review by due process administrative hearings.  You can read our previous blog posts about PAWA here, here here and here.

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The Occupational Safety and Health Administration (OSHA) has announced that it will hold a live web chat tomorrow from 3:00 to 4:00 p.m. (Eastern) to discuss OSHA's new safety rules for cranes and derricks used in construction. Interested parties can access the web chat by visiting http://www.dol.gov/dol/chat.htm tomorrow at 3:00 p.m. Cranes and derricks have been a perennial danger on construction sites, and improved safety standards will be a welcome development. The new standards will be even more effective if Congress passes the Protecting America's Workers Act (PAWA), HR 2067, so that workers will own their own retaliation claims if they insist on following the new rule and suffer retaliation as a result. The full OSHA statement announcing the web chat follows in the continuation of this entry.

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