When BNSF track inspector Brandon Fresquez refused to falsify reports of track defect repairs, he was terminated for insubordination. In another example of the transformative power of the FRSA, a federal jury and judge have ordered BNSF Railway to pay Fresquez $1.74 million, including $800,000 in emotional distress, $250,000 in punitive damages, and $696,173 in back and front pay.

The Fresquez v. BNSF Railway Company Decision is notable for its discussion of when front pay is appropriate and how it is calculated.

Although reinstatement is the preferred remedy, front pay may be awarded by the judge when reinstatement is not a viable option. OSHA’s Whistleblower Investigation Manual lists the factors to consider when determining if an award of front pay is appropriate:

the complainant’s job or a comparable job is no longer available; the complainant is not physically able of performing his job; an employer’s offer of reinstatement is not made in good faith; there is “extreme hostility” between the parties and reinstatement would be too disruptive; or returning to work would cause debilitating anxiety or otherwise risk the complainant’s mental health.

Calculating the amount of front pay is necessarily speculative, but a railroad “may not take advantage of the fact that its unlawful conduct was the cause of the uncertainty.” The judge will consider the individualized circumstances of the dismissed employee (work life expectancy, salary, benefits, availability of other work opportunities, etc), and specify an end date for the front pay. In the case of Fresquez, the Judge balanced all the factors and found front pay for 10 years was appropriate.

BNSF argued that Fresquez could have mitigated his damages by seeking employment with other railroads. But the burden of proof to show an employee failed to mitigate his or her damages is on the railroad, and the District Judge ruled BNSF failed to prove “that another railroad will hire a candidate discharged from a Class I railroad for insubordination.”

Here is the full initial Decision in Fresquez v. BNSF Railway Company finding front pay is appropriate, and here is the subsequent Fresquez v. BNSF Railway Company Decision calculating the specific amounts of back and front pay. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.