Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

In a January 15, 2013 press release, the U.S. Department of Labor announced that OSHA and BNSF Railway Co. had reached an agreement for the company to revise personnel policies that violate the whistleblowers provisions of the Federal Railroad Safety Act and discourage employees from reporting work-related injuries.

"Protecting America's railroad workers who report on-the-job injuries from retaliation is an essential element in OSHA's mission. This accord makes significant progress toward ensuring that BNSF employees who report injuries do not suffer any adverse consequences for doing so," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "It also sets the tone for other railroad employers throughout the U.S. to take steps to ensure that their workers are not harassed, intimidated or terminated, in whole or part, for reporting workplace injuries."

The major terms of the accord are listed in the OSHA press release.

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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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Today, attorney Stephen Kohn (Executive Director of the National Whistleblowers Center) and I are filing an amicus brief with the U.S. Department of Labor's Administrative Review Board (ARB). The brief urges the ARB to affirm a decision of an Administrative Law Judge (ALJ) in favor of Christopher Bala, a signalman for the PATH railway that carries commuters between New Jersey and New York City. As one of the first cases the ARB will address under the 2008 amendments to the Federal Rail Safety Act (FRSA), this case could set the tone for railroad workers cases for years to come.

Christopher Bala suffered a back injury at home in June 2008. His doctor ordered him to rest and refrain from work through the end of the next month. PATH's doctor agreed that he should not work. Still, his supervisor decided to launch a disciplinary hearing against him for violating PATH's absenteeism policy. In October 2008, Congress amended the FRSA to protect rail workers when they follow their medical treatment plans. The 2007 version of the FRSA already protected rail workers who raise concerns about safety or refuse to perform duties they reasonably believe are unsafe. Notwithstanding the change in the law, PATH proceeded with the disciplinary hearing against Bala. PATH eventually found him guilty of absenteeism and imposed a suspension. Bala complained to OSHA which ruled in his favor. PATH requested a hearing, and the ALJ again found that PATH violated the FRSA by imposing discipline on Bala. The ALJ held that the FRSA protects rail workers when they follow medical treatment plans for injuries that occurred on or off the job.

On appeal to the ARB, PATH has argued that the FRSA was only meant to encourage workers to report on-the-job injuries. PATH ignores portions of the congressional record showing that Congress wanted to reduce the number of rail accidents. PATH is asking the ARB to adopt an interpretation of the FRSA that would add a limitation that is not in the words Congress used. PATH is also asking to be exempt from the FRSA in cases where the disciplinary process was started before the effective date of the 2008 amendments to the FRSA. The Association of American Railroads (AAR), submitted its own amicus brief supporting PATH. It argued, without supporting data, that the ALJ's holding would impose costs on railroads, and go against the holdings of arbitrators and courts applying other laws.

The NWC amicus focuses on the plain language of the FRSA which explicitly protects railroad workers when they are following medical treatment plans. The brief reviews the legislative history behind the FRSA and shows that members of Congress wanted to save lives by reducing accidents. The brief explains how the FRSA fulfills the safety purpose by preventing management from pressuring workers to work when their medical condition could make them impaired. The brief sets out how similar laws for truck drivers (STAA) and airline workers (AIR21) protect them when they refuse to work due to medical impairments. The NWC amicus challenges the AAR's claims about costs, and the holdings of courts under other laws. It challenges the PATH brief for arguing that it should be allowed to continue its discipline of Bala even after the FRSA was amended to make that discipline unlawful.

I am particularly pleased to submit this amicus brief in one of the first cases under the new FRSA. Corporate fraud whistleblowers suffered for years when the ARB's initial decisions under the 2002 Sarbanes-Oxley Act (SOX) required a high standard for whistleblowers to win. The ARB finally abated that problem in last year's Sylvester case. With a good decision for Bala, rail workers may find the protection they need to avoid untold future accidents.  For that, we will all be safer.

Available here are:

• PATH's brief against Bala
• AAR's amicus brief against Bala
• Bala's brief
• NWC's amicus brief in support of Bala
• Solicitor of Labor's amicus brief in support of Bala

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