Last month, the first reported Order imposing punitive damages against a railroad for violating the FRSA anti-retaliation law came to light. It concerned retaliatory conduct by Amtrak in Seattle, but the OSHA Whistleblower Office Press Release announcing the Order provided few details about what actually happened.
Well, my curiosity was piqued. I managed to get my hands on OSHA’s Findings and Final Investigation Report, and the details are very telling.
The employee was working in the King Street Station in Seattle. In the rail yard north of Holgate Street she stepped off a platform onto a parking area that was not properly maintained (potholes, uneven ground, rocks) and twisted her left ankle on a rock. She reported the injury to her supervisor, who saw her swollen ankle, and she booked off injured. Amtrak immediately charged her with violating the usual vague all-encompassing "safety" rules (including Amtrak’s "Standards of Excellence," whatever that is), and held a disciplinary hearing. Initially she was fired, but that was reduced to a 30 day suspension without pay.
The employee filed a FRSA retaliation complaint, and OSHA Whistleblower’s office investigated. OSHA found Amtrak’s managers had "a mind-set that employees are always at fault when they are injured on the job" and "engaged in intimidation by assessing severe punishment against employees who report injuries, which sends a chilling effect to all employees not to report injuries for fear of losing their employment." OSHA ordered Amtrak: to pay the employee her back wages along with punitive damages; to expunge the discipline from her file; and to not retaliate or discriminate against her in any manner in the future.
To me, the most remarkable thing about this case is how typical the scenario is: an employee reports a FELA on-the-job injury, and the railroad reacts by filing bogus disciplinary charges against the employee. This happens every day on railroads all over the country. The fact punitive damages were ordered for such a common situation bodes ill for railroads like Metro North, the LIRR, NJ Transit, MBCR, Amtrak, and CSX where the management culture encourages such knee jerk disciplinary retaliation against employees who report injuries. The FRSA is designed to change that culture by enforcing the free and unfettered reporting of injuries. And punitive damages are the hammer that will force such a cultural change. So railroad managers beware: you now are on notice that trying to discipline an employee who reports a railroad injury will put you squarely in the crosshairs of a FRSA punitive damage action.