It’s a common scenario: employee reports injury; railroad conducts investigation of the injury; railroad declares the employee’s statements about the injury somehow to be “inconsistent” or “misleading” or “false” and fires him for dishonesty. Two recent decisions explain why that is a violation of the Federal Rail Safety Act.

In Henderson v. Wheeling & Lake Erie Railway, the Administrative Review Board clarifies the correct “contributing cause” analysis in such FRSA discipline cases, stressing that causation is presumed in situations where the employee’s protected activity and the adverse action are “inextricably intertwined.” When an employee is disciplined based on information he gives during his injury investigation, the ARB explained that the employee’s disclosure of his injury is “inextricably intertwined with the investigations that resulted in his discharge because the content of those disclosures gave the employer the reasons for its personnel actions against the employee.”

In other words, if the employee “had not reported his injury, the railroad would not have conducted the investigation that resulted in the discipline.” Thus the reporting of the injury constitutes a contributing factor, and the railroad is liable unless it can prove “by clear and convincing evidence” it would have disciplined the employee if the employee had not reported the injury. This reinforces the ARB’s precedent in DeFrancesco v. Union R.R. Co. Here is the full text of Henderson v. Wheeling & Lake Erie Railway.

A recent ALJ decision also applies this principle. In Cain v. BNSF, Christopher Cain was terminated for “late reporting” and “misrepresenting” a work injury. The ALJ stressed “I find that the public policy and legislative intent for the FRSA assume that disputes as to the nature and extent of injuries are commonplace and should not be used as a pretext to discriminate.”  Here is full text of Cain v. BNSF.

The take away? OSHA Whistleblower investigators do not view the facts through the lens of a FELA juror forced to decide between competing versions of how an injury occurred or its medical effect. If a railroad bases its decision to discipline an injured employee on statements it elicited from the employee during the injury investigation, that alone is enough for OSHA to find the reporting of the injury was a “contributing factor.” The railroad then can escape FRSA liability only if it clears the extremely high hurdle of proving it would have imposed the same discipline on the employee if he had not reported an injury. For more on the FRSA, go to the free Rail Whistleblower Library.

In addition to naming the railroad as a defendant in a Federal Rail Safety Act complaint, employees have the power to name managers or supervisors as individual defendants as well. And there are good reasons for doing so.

When OSHA, a judge, or a federal jury finds that a manager illegally retaliated against a worker in violation of the FRSA, it automatically creates an official record that can be used as a basis for the Federal Rail Administration to disqualify that manager from working in the railroad industry. For an explanation of how to permanently end the careers of such managers, click here.

And each violation of the FRSA exposes such managers to individual liability of up to $250,000 in punitive damages, plus unlimited economic and emotional distress damages and attorney fees and costs. So being named as an individual FRSA defendant means managers can be held personally liable for jury awards totaling hundreds of thousands of dollars.

However, it is important to list the names of any individual managers in the caption of the FRSA complaint filed with OSHA. That will ensure those managers also can be listed as individual defendants in any subsequent federal court jury trial.

So, from now on, managers who discipline injured workers have to ask themselves: “Is this retaliation really worth placing all my personal assets at risk?” For more on the FRSA, go to the free Rail Whistleblower Library.

 

It’s official: injured railroad workers who seek medical attention now have a triple layer of protection against retaliatory discrimination. A U.S. District Court has joined OSHA and the Administrative Review Board in ruling that a railroad’s denial, delay, or interference with the medical treatment of an injured employee is a form of “discrimination” prohibited by the Federal Rail Safety Act.

Union Pacific Track Foreman Rene Delgado was walking through a Yard when a discarded piece of rusty scrap metal cut his foot. He told his co-workers to start taking him to a nearby hospital, and called a supervisor to inform him he was on his way to the hospital. But a senior manager ordered Delgado not to go to the hospital and to return to the Yard office instead. Delgado complied, and then was sent to a railroad clinic rather than a hospital. The clinic instructed Delgado to stay off his feet, but instead he again was taken back to the Yard to do a “reenactment” of the incident. Management then told him to return the next day for light duty (to avoid reporting a lost time injury), but the next day his pain was so intense he went to a hospital, where he was immediately admitted for a badly infected foot that now required surgery.

The Union Pacific argued it is not “discrimination” when a railroad denies, delays, or interferes with an injured worker’s medical treatment. But the federal district judge soundly rejected that argument:

The Court has no difficulty in construing the denial of medical treatment as discrimination against an employee who may potentially disclose a hazardous condition at the work site. . . . Seeking medical treatment for a workplace injury is likely, if not almost certain, to lead to the disclosure of the hazard that caused the injury, and in that light, a carrier’s efforts to “deny, delay, or interfere” with an injured employee’s pursuit of medical treatment can easily be understood to constitute a form of discrimination, and retaliation, against such an employee.

The Court therefore concludes that Section 20109 provides a private right of enforcement to an employee who alleges that a railroad carrier violated the provisions of subsection (c)(1) by denying, delaying, or interfering with the medical or first aid treatment of an employee injured during the course of employment.

Employees who disclose a hazard in the workplace are protected under FRSA subsection (b)(1)(A).  Delgado confirms that when employees notify the railroad of a work related injury they also are likely disclosing the workplace safety hazard that caused the injury.  So employees who report a work-related injury now have three layers of protected activity: subsection (a)(4) protects them for notifying the railroad of the injury; subsection (c)(1) protects them for seeking medical treatment for the injury ; and subsection (b)(1)(A) protects them for reporting the hazardous safety condition that caused or contributed to the on-the-job injury.

For the complete text of the federal district court decision in Delgado v. Union Pacific Railroad Company. For more on the FRSA, go to the free Rail Whistleblower Library.

As predicted, the maximum amount of punitive damages is becoming routine in Federal Rail Safety Act cases. This past spring a federal jury ordered $1 million in punitive damages in the first FRSA jury trial. Now, an Administrative Law Judge has awarded the $250,000 statutory maximum in punitive damages against a railroad for firing a worker who reported an injury “in an untimely manner.” And the ALJ so ruled even though OSHA had dismissed the complaint after its investigation found no merit.

The facts are all too common. BNSF sheet metal worker Christopher Cain was involved in a motor vehicle accident at work. He duly filed a railroad injury report but did not seek any medical treatment and continued working with no lost time. Three weeks later, his doctor indicated it was probable he suffered some bleeding in his lung due to the work injury incident. When, two months later, Cain informed the Railroad he was taking a medical leave due to a lung condition related to the injury report incident, his supervisors told him it would make his injury “FRA reportable” and “hurt the managers.” He went on medical leave anyway, but after he returned to work his managers assigned him to the worst part of the Yard and then fired him for “failing to report injuries in a timely fashion.”

After an exhaustive analysis of the facts and FRSA law, the ALJ Daniel F. Solomon ruled:

I find that several of BNSF’s management employees conspired to defeat Cain’s right to submit a medical claim and deprive him of his job. I also find that their assignment of Cain to the worst part of the Yard was wanton and willful and an equivalent to an intentional tort. . . .

I also find that public policy and legislative intent for the FRSA assume that disputes as to the nature and extent of injuries are commonplace and should not be used as a pretext to discriminate. Section 20109(a)(4) protects railroad employees from retaliation for notifying or attempting to notify the railroad of a work-related personal injury. That the FRA injury reporting regulations require the railroad to report injuries including the number of lost work days, and may be violated by a railroad that does not accurately report workplace injuries or the number of lost work days, does not impede a railroad employee’s right under 20109(a)(4) to report the injury to the railroad without fear of retaliation.

The ALJ noted that punitive damages are “to punish unlawful conduct and to deter its repetition,” with the amount based on the punitive damages “imposed in other cases for comparable misconduct.” Noting that BNSF management “railroaded” Cain, ALJ Solomon awarded the statutory maximum of $250,000 in punitive damages. To top it off, BNSF now has to pay Cain’s lawyers all of their attorney fees and costs.

So, despite a steady increase in the amount of FRSA punitive damage awards over the past four years, railroads have not changed their retaliatory ways. And until they do, we can all expect to see OSHA, ALJs, and juries awarding the $250,000 statutory maximum as a matter of course. For the complete text of Cain v. BNSF.

 

Norfolk Southern Railroad’s illegal practice of charging employees who report injuries with “false and misleading statements” is catching up with it. In the past three months, OSHA has ordered $2,154,000 in damages against Norfolk Southern for violating the Federal Rail Safety Act rights of seven employees. That is an average of $308,000 per violation, not even counting the cost of NS’s own attorney fees. And experience teaches those FRSA damages will double or triple at the hands of judges and juries, with NS also paying well into the six figures for the attorney fees of both sides.

But apparently paying up to a million dollars per FRSA violation is worth it to Norfolk Southern so long as it can keep chilling the reporting of injuries by its employees. Here are excerpts from OHSA’s official Findings in two of the most recent cases:

The evidence shows that Norfolk Southern intentionally presented an extraordinary and fraudulent theory that it was not physically possible for the employee to have sustained an injury in the manner he described. . . . On several previous occasions, OSHA has found that Norfolk Southern violated the whistleblower protection provisions of FRSA when it brought disciplinary charges against employees who reported workplace injuries, charged those employees with falsifying or making misleading or conflicting statements about their injuries, and terminated their employment.

For the full text of Kawa v. Norfolk Southern Railroad Co. And here’s what OSHA stated in Ratledge v. Norfolk Southern Railroad Company:

Norfolk Southern’s retaliatory conduct towards employees who report injuries and/or illnesses has created a chilling effect in the workplace. On several previous occasions, OSHA has cited Norfolk Southern for violating the whistleblower protection provisions of FRSA. Norfolk Southern’s continued callous disregard for employees’ protected rights under FRSA warrants significant punitive damages.

Here is the full text of the Ratledge case. In his Press Release regarding these two cases, Head of OSHA Dr. David Michaels stated:

Firing workers for reporting an injury is not only illegal, it endangers other workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury or possible future prevention can occur. Railroad workers must be able to report work-related injuries without fear of retaliation. . . . Railroads who break the law will be held accountable.

And at least for now, being held accountable for up to a million dollars per FRSA violation seems perfectly acceptable for Norfolk Southern as long as it can continue its culture of retaliation against workers who report injuries.

In a decision that will send shock waves reverberating throughout the railroad industry, railroad medical departments now are prohibited from doing anything that directly or indirectly interferes with the treatment prescribed by an injured worker’s treating doctor for the entire period of medical treatment, not just immediately after an injury. Once again, thanks to the Federal Rail Safety Act, the balance of power is shifting from management to rail labor, and railroad medical departments will never be the same.

Here’s the context. When a chair at his Metro North Railroad work place collapsed as he sat down, my client Anthony Santiago suffered an injury to his low back. Metro North ordered him to go to its Medical Department, which confirmed he had an occupational back injury and advised him to see an orthopedic physician. For two months Metro North followed its policy of paying the medical bills for occupational injuries. However, when a MRI scan confirmed Santiago had a herniated disc and his doctor prescribed treatment for the disc, Metro North’s Medical Department immediately reclassified Santiago’s occupational back injury as “non-occupational” and refused to pay for the treatment. As a result, Santiago suffered a four month delay in his prescribed treatment and was forced to pay $16,520 in medical expenses out of his own pocket.

FRSA Subsection (c)(1) states that ” a railroad may not deny, delay, or interfere with the medical or first aid treatment” of an injured employee. OSHA found Metro North violated Santiago’s subsection (c)(1) rights, but an Administrative Law Judge viewed the scope of (c)(1) as being narrowly limited to the initial medical treatment immediately after an injury, and dismissed the complaint. Santiago appealed to the Administrative Review Board, which reversed the ALJ in a precedent-setting decision confirming the broad scope of (c)(1).

The ARB spelled out the meaning of Subsection (c)(1)’s phrase “may not deny, delay, or interfere with medical treatment”:

These are prohibitive words simply meaning to impede, slow down, or prevent medical treatment from moving forward or occurring. An act that causes medical treatment to be rescheduled necessarily means that the treatment was delayed. Any obstacle placed in the way of treatment necessarily results in interference. Denial means to refuse or reject a request for medical care.

The ARB confirmed that the term “medical treatment” means the entire period of an injured worker’s treatment and recovery, and that the sweeping mandate of subsection (c) means railroads must stay completely out of the way of the treatment prescribed by an injured employee’s medical providers:

The FRSA statute contemplates that the railroad carrier will stay completely out of the way of medical treatment, and if it does exactly that, it will not be liable for whistleblower retaliation if the independent medical treatment providers conclude that no more care is needed for the work injury. However, the instant that the railroad carrier directly or indirectly inserts itself into that process and causes a denial, delay, or interference with the medical treatment, causation for a violation is presumed. . . . In agreeing to pay for medical treatment for work injuries, a railroad cannot insert itself into the process and influence the level of care provided.

The ARB also affirmed the independence of the FRSA from the FELA:

FELA’s requirement that an injured employee prove negligence does not foreclose the same employee from proving under section 20109(c) that the railroad violated a whistleblower protection provision. Certainly, there can be overlapping remedies common to both legal theories, but the FELA itself [at 45 U.S.C. Section 58] provides that nothing shall limit the liability of railroads or impair the rights of their employees under any other act of Congress. Thus, an employee who files a whistleblower complaint under the FRSA can also file a negligence claim under the FELA. A railroad’s defense against an employee’s FELA claims is a separate issue from those addressed in FRSA whistleblower claims.

Bottom line? Railroads can no longer interfere with the medical treatment of injured workers. Ever. In any way. The ARB’s decision is binding on all OSHA investigators and ALJs nationwide. The balance of power has shifted, and now rests firmly in the hands of the injured worker and his treating doctors. For the full text of Santiago v. Metro North Railroad. BUT NOTE THIS UPDATE: here is text of the subsequent Second Circuit decision in Metro North v. U.S. DOL.

The culture of rail safety will never be the same. In an extraordinary Joint Letter addressed to all the nation’s railroads, the Heads of OSHA and FRA have thrown the switch that will direct the locomotive of rail safety from the old track of retaliation onto the new track of root cause remediation. Their Joint Letter signals the transition from a rail culture where the reporting of an injury is met with retaliation to a rail culture where the reporting of an injury is embraced as an opportunity to uncover and remedy the root cause of the injury. It is a clarion call to replace retaliation with root cause remediation. How? By abandoning abusive discipline and instead focusing on the prevention of future injuries through the elimination of all the hazardous conditions that combined to produce the injury.

The importance of this Joint Letter cannot be overstated. It is addressed to the Presidents of the Association of American Railroads, the American Short Line and Regional Railroad Association, and the American Public Transportation Association. It begins by pointing out that the success of our nation’s rail safety programs depends on the complete and accurate reporting of all employee injuries and safety concerns. The Heads of OSHA and FRA then state:

We are writing to highlight a troubling railroad accident/incident reporting trend and to provide concrete way railroads can improve the safety of their workplaces and improve their compliance with Federal safety regulations and the FRSA. . . . Between August 3, 2007, and March 31, 2012, OSHA received 910 whistleblower complaints under FRSA’s Section 20109. Approximately 63 percent of these complaints involve an allegation that a worker has been retaliated against for reporting an on-the-job injury. FRA and OSHA are very concerned about the high number of complaints, and that the number of whistleblower complaints is escalating.

Their Joint Letter goes on to explain how the disciplinary system must be used to promote, rather than undercut, safety:

To be effective, discipline needs to be assessed evenly and the punishment must fit the infraction. That is, for a given rule violation, similar punishment should be given to an employee who violated the rule without being injured as that given to one who was injured, and it must be appropriate punishment. The perception that injured employees are being singled out for discipline, while non-injured employees who violate the same rules are not disciplined, leads to the development of an organizational safety culture that may inadvertently suppress accurate reporting.

OSHA and FRA are also troubled by the number of whistleblower allegations involving discipline of employees for allegedly falsifying or making false, misleading or conflicting statements about their injuries. In several cases, OSHA’s investigation found reasonable cause to believe that the employee did not provide false or misleading information and that the railroad’s internal investigation did not support the charge. Discipline based expressly on an employee’s injury report has a high potential to chill workplace injury reporting because it may lead employees to believe that anything they say about a workplace injury will be used against them.

We believe that the use of employee discipline as part of a railroad safety program may result in reducing the number of injuries reported by employees, but it will not ultimately succeed in reducing the actual occurrence of injuries. FRA and OSHA are concerned that if employees fear discipline and do not report an injury that has occurred, we all lose the opportunity to determine the root cause of the injury and focus on prevention.

The Joint Letter goes on to “strongly encourage” railroads to change their safety cultures, and points to improvements recently made by Amtrak to transition from a culture of retaliation to a culture of root cause remediation (more on that later).

This is a watershed moment in the history of rail safety. Historians will look back and mark this as the beginning of the end for the abusive culture of retaliation against rail employees who report injuries and safety concerns. With OSHA and FRA working in sync to enforce the FRSA’s whistleblower protections, it now is just a matter of time before every railroad makes the transition from retaliation to root cause remediation. For the complete text of this landmark FRA/OSHA Joint Letter.  For more on the FRSA, go to the free Rail Whistleblower Library.

In a watershed moment for rail safety, the Federal Rail Administration and OSHA’s Office of Whistleblower Protection are joining forces to eliminate retaliation against employees who report injuries and safety concerns. OSHA and the FRA have signed an historic Memorandum of Agreement specifying how they will be cooperating to enforce the whistleblower protection provision of the Federal Rail Safety Act.

Since the FRSA whistleblower protections were enacted in late 2007, OSHA has received 900 complaints, two-thirds of which involve retaliation against workers who report on-the-job injuries. Such abuse has a chilling effect on the willingness of workers to report injuries and safety concerns, and violates the FRA’s injury reporting regulations. The FRA and OSHA have sent a joint letter to railroads highlighting this troubling trend, and their Memorandum of Agreement confirms it will not be tolerated. In the words of OSHA Head Dr. David Michaels, “The safety of railroad employees depends on workers’ ability to report injuries, incidents, and hazards without fear of retaliation. OSHA welcomes the opportunity to work with the FRA to protect these rights and make our nation’s railroads a safer place to work.” And FRA Head Joe Szabo stressed: “Securing a process that protects employees who report safety violations is critical to maintaining safety standards in the workplace.”

Now, FRA inspectors will be trained to recognize FRSA violations and OSHA investigators will be trained to recognize FRA violations, and both will refer such violations to the appropriate agency for enforcement. OSHA will give the FRA copies of all the FRSA complaints it receives, and both agencies will coordinate to ensure the entire spectrum of rail safety regulations are enforced. It makes perfect sense, and will go far to advance the cause of rail safety nationwide. For OSHA’s Press Release, click here. For the FRA’s Press Release, click here. Here is the full text of the Memorandum of Agreement. For more on the FRSA, go to the free Rail Whistleblower Library.

Norfolk Southern Railway is showing all of us how to get hit with big Federal Rail Safety Act punitive damages. Here is OSHA’s explanation as to why it awarded record-breaking punitive damages against Norfolk Southern in two recent FRSA cases.

NS Engineer Kintner was fired after reporting an injury due to a tripping hazard in a locomotive. OSHA concluded:

the evidence in this case indicates that Norfolk Southern orchestrated its investigation into the circumstances surrounding Kintner’s injury to support its pre-determined conclusion that Kintner falsified the injury, tried him in absentia, and terminated him because he reported a work-place injury. Kintner and other employees indicated that they are reluctant to report injuries because they fear that Norfolk Southern will suspend and eventually terminate their employment. Such egregious conduct by NS has created a chiling effect. In fact, NS has been cited by OSHA in several other instances for violating the whistleblower protection provision of FRSA by responding to reports of work place injuries in the same manner that it did here—i.e. by conducting an investigation and disciplinary hearing foreordained to find the employee falsified the injury and terminatino the employee despite evidence that the workplace injury occurred. Norfolk Southern’s continued callous disregard for its employees protected rights under FRSA warrants significant punitive damages.

As a result, OSHA ordered NS to pay $150,000 in punitive damages and $50,000 for emotional distress. For the full text of Kintner v. Norfolk Southern Railway.

Similarly, NS trackman laborer Morris was fired after he reported an injury arising out of an incident that involved his entire gang. OSHA found:

Norfolk Southern terminated Morris because he was the only employee who was injured and initiated a reportable injury filing, thereby marring NS’s self-proclaimed stellar injury and illness rates. . . . Norfolk Southern’s investigation and hearing process appear to have been intentionally orchestrated to support the decision it already had made to terminate Morris. . . . He was treated disparately as compared to other employees involved in the accident, and in fact was the only one terminated. NS directly targeted Morris because of his injury report and humiliated him for doing so. NS wanted to make him an example of what would happen if an employee reports an injury.

Noting NS’s “retaliation exhibited a reckless disregard for the law and total indifference to its employee’s statutorily protected rights” that “has created a chilling effect in the workplace,” OSHA ordered NS to pay $200,000 in punitive damages and $100,000 for emotional distress. For the full text of Morris v. Norfolk Southern Railway.

Thanks to the FRSA, Norfolk Southern’s addiction to retaliation has become a very expensive habit indeed.  For more on the FRSA, go the to free Rail Whistleblower Library.

Norfolk Southern Railway is learning the hard way that retaliation doesn’t pay. Despite earlier warnings, it has continued its abusive course of conduct toward employees who report injuries. And so today OSHA issued a Press Release confirming record breaking punitive damage awards in three Federal Rail Safety Act cases: $200,000 + $175,000 + $150,000 = $525,000 in punitive damages alone, not including lost wages and attorney’s fees for awards totaling over $800,000.

With these awards, OSHA has made it clear Norfolk Southern’s pattern of filing bogus "false and conflicting statement" charges against injured workers will not be tolerated. In the words of Dr. David Michaels, the Head of OSHA:

Firing workers for reporting an injury is not only illegal, it also endangers all workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury can occur. To prevent more injuries, railroad workers must be able to report an injury without fear of retaliation. The Labor Department will continue to protect all railroad employees from retaliation for exercising these basic worker rights. Employers found in violation will be held accountable.

And the best news is, if Norfolk Southern doesn’t pay these OSHA awards and reflexively appeals, we now know how juries react toward such unsafe abusive conduct by railroads: with visceral disgust and revulsion that produces even higher punitive damage and emotional distress awards.Click here for details of the first FRSA jury verdict.