OSHA Orders Hefty Awards in Railroad Safety Whistleblower Cases, Trend in Federal Rail Safety Decisions

Late last month, OSHA ordered Union Pacific Railroad to pay three employees more than $615,000 for the company’s violations of the Federal Rail Safety Act (FRSA), which prohibits rail employers from retaliating against workers who file safety complaints, report work-related injuries, refuse to break Federal laws, cooperate with safety and security investigations, and more. 

According to an OSHA press release, Union Pacific took adverse action against employees in three separate cases for either reporting safety concerns or work-related injuries.  “Union Pacific Railroad has created a climate of fear instead of a climate of safety,” OSHA assistant secretary David Michaels told The Kansas City Star. A Union Pacific conductor based out of Kansas City was fired in September 2010 after repeatedly contacting the company’s safety hotline about “fall and trip hazards, missing and obstructed roadway signs, and various right-of-way issues.”  In a letter to the company, the Department of Labor Secretary suggests that on at least two occasions, the conductor reported more than 100 violations in a single hotline call.  The worker also complained that supervisors breached safety protocol during a field test.  In 2009, the company fired an Arizona locomotive engineer after he reported an injury.  A third employee also based in Kansas City found himself suspended for five days after his hotline complaints about rough spots on the track.

Of the total award, Union Pacific must pay $400,000 in punitive damages, $90,000 in back pay, and over $90,000 in compensatory damages, but the company plans to appeal the Department of Labor decision immediately.

Just days before the Union Pacific decision, OSHA concluded a case against Burlington Northern Santa Fe Railway Co. (BNSF), ordering a $300,000 award to a whistleblower.  A Department of Labor press release states that BNSF suspended the female worker without pay for reporting a work injury in late 2008, but the railroad asserted that it disciplined the woman for refusing to cooperate with an investigation into circumstances surrounding the injury.  Despite this, OSHA investigators determined that the railroad took adverse action against the worker in violation of FRSA.

The Union Pacific and BNSF whistleblower cases represent a trend in favorable decisions for railroad employees.  In 2011 alone, OSHA has made several determinations against companies like Norfolk Southern, Metro North Commuter Railroad and Wisconsin Central for FRSA violations, and the United Transportation Union praised OSHA’s move to “put teeth” into the railroad safety and whistleblower law passed in 1970 and later amended in 2007 and 2008. If you believe an employer has retaliated against you in violation of the Federal Rail Safety Act, contact the experienced lawyers of Katz, Marshall and Banks.  Also, learn more about Federal railroad whistleblower protections here.