Here’s an open secret: retaliation is the hallmark of an insecure manager who has no clue how to lead workers and who knows in his heart he is not qualified to be in a position of power.
Insecure rail managers perceive reports of safety concerns or injuries as a personal affront to their authority and react by striking back against the employee. Enlightened managers welcome reports of safety problems as an opportunity to improve conditions and take steps to avoid future injuries. Their response is: “Thank you for bringing that to my attention, we will look into it right away and make the necessary corrections to ensure something like that never happens again.” But instead of treating a safety or injury report as an opportunity to correct an underlying problem, insecure managers “shoot the messenger” by automatically retaliating against the employee.
The problem is, reporting safety concerns and injuries are now “protected activities” under the Federal Rail Safety Act and cannot be subject to any adverse consequences such as discipline or discrimination. And any such retaliation against employees who report injuries or safety concerns is illegal under the FRSA and will result in punitive damages awards.
So here’s how railroads can inoculate themselves against expensive FRSA retaliation claims: treat employee injuries and safety complaints as neutral events. That means changing your management culture so that safety complaints and injury reports are viewed as neutral events that do not provoke adverse consequences.
A corollary of this means changing the financial incentives for railroad managers. The Federal Rail Administration has noted that the annual compensation of managers is affected by the number of injuries reported by employees under their supervision. Is it any wonder then that rail managers react to the report of an injury as if the employee is taking money out of the manager’s pocket? Is it any surprise managers find ways to discourage and chill the reporting of injuries? Instead, why not base the financial compensation of rail managers on how they correct the underlying problems that lead to an injury? So that instead of focusing on disciplining the injured employee, managers focus on eliminating the risk of future injuries?
So that’s the secret that will put attorneys like me out of the FRSA enforcement business. See, e.g., $300,000 in punitives against Metro North Railroad. All it takes is a change in the culture of rail management from one of retaliation to one of risk remediation. Railroads can do it the easy way (voluntarily) or the hard way (getting hammered by FRSA damages), but one way or the other, the culture of rail management will change. And for that, we can thank the FRSA.