• Effort by Railroad to Promote Safety Draws Fine from OSHA
  • February 20, 2014 | Author: Joseph F. Spitzzeri
  • Law Firm: Johnson & Bell, Ltd. - Chicago Office
  • A whistleblower investigation by the U.S. Department of Labors’ Occupational Safety and Health Administration determined that an Illinois railroad, by conducting a disciplinary hearing, retaliated against a worker for reporting a work related injury, in violation of the whistleblower protection provisions of the Federal Railroad Safety Act.  “Railroad workers have the legal right to report work related injuries without fear of retaliation,”  said Theresa A. Harrison, OSHA’s acting Regional Administrator in Atlanta. “Railroads that take such retaliatory actions against their workers for exercising basic rights will be held fully accountable and prosecuted.”

    In this case, the conductor sustained injuries to his head, neck and back when falling into the bulkhead after the emergency brake was applied unexpectedly on a moving locomotive. The incident and injuries were reported immediately to the train master. The complainant was taken by ambulance to the hospital, admitted and diagnosed with a closed-head injury.

    As a result of its findings, OSHA ordered the railroad to pay $1,000 in punitive damages and to take corrective action, including expunging disciplinary actions and its references to them from various records.  OSHA also ordered the railroad to compensate the worker for reasonable attorney’s fees. The railroad must also post and provide Federal Railroad Safety Act (FRSA) whistleblower rights to its workers.

    Under FRSA, employees of a railroad carrier and its contractors and subcontractors are protected against retaliation for reporting on-the-job injuries, certain safety and security violations and for cooperating with investigations by OSHA and other regulatory agencies.

    This recent action by OSHA, coupled with its recently expressed views against safety incentive programs, suggests OSHA is willing to penalize employers for taking corrective action to promote safety.  The OSH Act does place obligations upon employees to comply with the Act and its regulations even though there are currently no provisions in place for citing employees for said violations.  Employers should remain vigilant in investigating accidents for safety violations and should not be chilled from doing so by OSHA’s recent enforcement action.  OSHA’s actions need to be challenged as an unreasonable overreaching of its powers, contrary to its safety mission.

    In a similar situation, the DOL filed suit against a national telephone company alleging that from 2011-2013, 13 employees were suspended without pay after they reported injuries that occurred on the job. The phone company maintains that each employee broke standard safety requirements. The DOL responded that OSH Act states that employers are to provide a safe environment for their workers, and any disciplinary action taken against an employee for reporting an injuring that occurred on the job is a violation of whistleblower provisions.

    OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various securities, financial services, trucking, airline, nuclear power, pipeline, environment, rail, maritime, healthcare, food safety, motor vehicle safety, workplace safety and health regulations, and consumer product safety laws.