BNSF Railway Hit With FRSA Punitive Damages

Posted on December 18, 2010 by Charlie Goetsch

Here is a classic example of how the Federal Rail Safety Act is correcting rail management's reflexive "blame the injured worker" mentality. The Railroad failed to provide the proper tool to do the task in question. So the worker used whatever was at hand to complete the task, just as many other workers had done with management's blessing and without being disciplined. But this time the worker was injured. So, instead of disciplining the managers who failed to provide the proper tool, the Railroad disciplined the worker for using "an improper tool."

Under the FRSA, this is an invitation to be slapped with punitive damages, and OSHA has done just that. Even though the worker only lost one day's pay, BNSF now must pay him $75,000 in punitive damages and $15,000 for emotional distress, plus attorney's fees, for a total of $95,096.  The FRSA has made retaliation against injured workers an indulgence that will cost railroads dearly. For the complete text of OSHA's BNSF Award, click here.

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FRSA Also Protects Co-Workers

Posted on December 8, 2010 by Charlie Goetsch

The act of filing a Federal Rail Safety Act complaint with OSHA is itself a protected activity that cannot in any way be used against the employee. But co-workers are protected as well. Any co-worker who talks to an OSHA Whistleblower investigator or who cooperates with the OSHA FRSA investigation gains protection going forward from any retaliation by the Railroad. So any fellow worker who provides information to an FRSA investigator dons the same suit of protective armor against retaliation and wields the same shield and sword to strike back against retaliatory managers. In some circumstances, union reps may be able to leverage such FRSA protection to push back against disciplinary charges. The citation for the FRSA subsection providing such protection is 49 USC 20109(a)(3).

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