Two new landmarks have appeared in the Federal Rail Safety Act landscape, one erected by a federal court jury and the other by OSHA’s top policy makers. Last week’s $1 million punitive damages jury award for my client is indeed historic, but should not overshadow a recent seminal Memo by OSHA of equal importance.
The Memo is by Deputy Assistant Secretary Richard E. Fairfax, the second in command at OSHA who reports directly to Dr. Michaels. It is addressed to all OSHA Regional Administrators and Whistleblower program managers. It is a remarkable document that is required reading for any one concerned with the FRSA.
The Fairfax Memo begins by confirming the link between public safety and the reporting of injuries:
If employees do not feel free to report injuries, the employer’s entire work force is put at risk. Employers do not learn of and correct dangerous conditions that have resulted in injuries, and ensuring that employees can report injuries without fear of retaliation is therefore crucial to protecting worker safety and health.
The Fairfax Memo “is intended to provide guidance to whistleblower investigative staff on several practices that can discourage employee reports of injuries and violate” the FRSA. It goes on to spell out “several practices that could discourage reporting and could constitute unlawful discrimination” in violation of the FRSA:
1. OSHA has received reports of employers who have a policy of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury. OSHA views discipline imposed under such a policy against an employee who reports and injury as a direct violation of FRSA.
2. In another situation, an employee who reports an injury is disciplined, and the stated reason is that the employee has violated an employer rule about the time or manner for reporting injuries. Because the act of reporting the injury directly results in discipline, there is a clear potential for violating FRSA. An employer’s rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all.
3. In a third situation, an employee reports an injury, and the employer imposes discipline on the ground that the injury resulted from the violation of a safety rule by the employee. Several circumstances are relevant to determine if an employer is using a work rule as a pretext for discrimination against a worker who reports an injury. Does the employer monitor for compliance with the work rule in the absence of an injury? Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury? Vague rules, such as a requirement that employees “work carefully,” may be manipulated and used as a pretext for unlawful discrimination. Where such general rules are involved, the investigation must include an especially careful examination of whether and how the employer applies the rule in situations that do not involve an employee injury. Enforcing a rule more stringently against injured employees than noninjured employees may suggest that the rule is a pretext for discrimination against an injured employee in violation of FRSA.
Thus the Fairfax Memo is a field manual for identifying the most common forms of discrimination against injured employees that violate the FRSA. For the complete text of the OSHA Fairfax Memo.
Taken together, what is the meaning of these two major new FRSA landmarks?
For generations, railroad managers were free to play a private game stacked in their favor. When it came to disciplining workers who reported injuries, managers simply filed the charges and then formed a flying wedge that trampled the employee and his hapless union rep and ground them into the dirt. No outside party was allowed to interfere or intervene in this private ritual of abuse. But these two new landmarks confirm those days are over.
Now, thanks to the FRSA, a legion of OSHA investigators have infiltrated the playing field and are blowing the whistle on managers, trying to hold them accountable for their retaliatory conduct. And true to form, the managers have done their best to ignore those OSHA investigators, treating their Findings as mere nuisances to be reflexively appealed.
But now an amazing thing has happened. Because the FRSA allows employees to subject railroads to federal court jury trials, for the first time the private gates have opened and the public itself has flooded into the playing field, surrounding the managers. For the first time, the sunshine of jury trials is publicly exposing the abusive conduct of rail managers. And for the first time, rail managers are being subjected to the withering stare of citizens who have the power to express the outrage and disgust of the community by awarding punitive damages.
And jurors truly are disgusted by what they see. Disgusted by the smug arrogance of railroad managers who believe it is their inherent right to abuse injured workers with impunity. Disgusted by the recklessly unsafe culture of retaliation rail management hides behind the window dressings of safety. OSHA sees it clearly now, as evidenced by the Fairfax Memo. And jurors see it clearly as well, as evidenced by the million dollar message in the first FRSA jury verdict. A fundamental shift in power has occurred. The game has changed, and now managers who remain blinded by arrogance will be the ones trampled and ground into the dirt.