When the imposition of discipline violates the Federal Rail Safety Act, it is routine for OSHA or a judge to order its expungement from the railroad’s records. But what if that runs afoul of other laws requiring the preservation of corporate records? In Brough v. BNSF Railway, the Administrative Review Board explains how to finesse that dilemma:
We note it may be futile to order an employer to “expunge” information which other laws may require the employer to maintain. Because businesses may not be able to legally destroy company or corporate records, ALJs should be cautious and specific when ordering an employer to “expunge” information from an employee’s personnel record. Where an ALJ finds it necessary to order an employer to disregard certain information which had been placed in an employee’s personnel record, it would be more realistic, for example, for the ALJ to require that the information be placed in a sealed and/or restricted subfolder or that the employer be specifically prohibited from relying on the information in future personnel actions or referencing it to prospective employers.
See also the ARB’s decision in Leiva v. Union Pacific Railroad Company. The expungement of illegal discipline is a vitally important make whole remedy, and such fine tuning may be necessary to ensure it functions as intended.
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