The arrogance of rail management never ceases to amaze. The latest example comes from the BNSF, whose General Counsel had the gall to tell OSHA’s Office of Whistleblower Protection that it “must disclose the names of the employee witnesses” OSHA intends to interview so the BNSF can “offer its representation” to those workers and be present during the interviews. In other words, the Railroad wanted their lawyers to be present in order to intimidate the workers being interviewed.

In a stinging rebuke, the Head of OSHA issued a letter stating that BNSF’s request was “wholly inappropriate” and that OSHA would not comply with it. Dr. David Michaels pointed out that all non-management witness interviews are confidential and conducted in private, and that it would be a conflict of interest for the Railroad’s attorney “to represent both the corporation and non-managerial employees in a whistleblower case.”

Dr. Michaels then underscored the protection provided to all railroad employees who participate in an OHSA FRSA investigation:

We also wish to remind you that it is a violation of the employee protections of FRSA to discharge, demote, suspend, reprimand, or in any other way retaliate against an employee who provides information to OSHA or otherwise assists OSHA in an investigation of a FRSA whistleblower complaint. OSHA takes allegations of such retaliation extremely seriously and will not tolerate retaliation against witnesses who cooperate in FRSA whistleblower investigations.

The message could not be clearer. All co-workers who talk to an OSHA investigator or cooperate in any way with an OSHA FRSA investigation gain a suit of armor against retaliation. And any rail manager foolish enough to retaliate against a worker who has cooperated with OSHA had better be prepared to pay the maximum amount of punitive damages. For the full text of Dr. Michaels’ letter. For more on the FRSA, go to the free Rail Whistleblower Library.

The case of my client Chris Bala established that the FRSA protects ALL railroad workers (not just employees with an on-the-job injury) from attendance discipline when they follow the orders of a treating doctor not to work  Why? Because safety trumps discipline. No one wants medically impaired railroad employees reporting to work against their doctor’s orders solely to avoid absenteeism discipline.

No one except the American Association of Railroads. The AAR filed an amicus brief objecting to the Bala ruling, arguing that discipline trumps safety. But the United States Solicitor of Labor has weighed in with an amicus brief of its own confirming that FRSA Section (c)(2) protects ALL medically impaired railroad employees who follow their doctor’s orders not to work, even workers who are injured off the job or have a non-work related medical condition.

The National Whistleblower Legal Defense Fund Center also filed an amicus brief in support of my client Chris Bala and all railroad workers who want to take the safe course and not attempt to perform their safety sensitive duties in a medically impaired condition. So here’s hats off to OSHA and the NWLDFC for helping protect the safety of everyone affected by the operations of our nation’s railroads. For the Whistleblower Protection Blog entry that has links to all the briefs in the Bala v. PATH appeal, click here.

In an important ruling underscoring OSHA’s commitment to protect rail workers who file Federal Rail Safety Act complaints, OSHA has hit the CSX railroad with the highest award for emotional distress damages yet.

After CSX fired dispatcher Robin Young in connection with a near miss incident, on March 2, 2010, he filed a FRSA complaint with OSHA alleging his termination was in retaliation for having raised safety issues during the disciplinary proceeding. Meanwhile, Young exercised his seniority rights to return to work as a track maintenance employee. CSX’s Legal and Labor Relations Departments approved his return as a trackman, and on March 17th he worked a full shift in the Albany New York area.

However, on March 16th CSX’s corporate secretary’s office had received a copy of his OSHA complaint, and after his shift ended on March 17th CSX called Young and told him he was terminated as a trackman. The next day Young amended his FRSA complaint to allege the March 17th termination was in retaliation for his having filed a FRSA complaint.

OSHA’s investigation resulted in some disturbing findings regarding the conduct of CSX’s Director of Labor Relations Noel Nihoul. OSHA noted that prior to receiving the FRSA complaint, CSX’s Legal and Labor Relations Departments had green lighted Young’s reinstatement as a trackman. In the words of OSHA:

Yet, within one day of the corporate secretary’s office receiving notification of the FRSA retaliation complaint, Mr. Nihoul directed the termination of Young despite the fact he had already returned to work and Mr. Nihoul’s department had approved that return to work after obtaining legal advice that Young’s return to work was permissible under the CBA. Mr. Nihoul worked in the corporate office and is responsible for enforcing corporate polices. The decision maker was not a low level manager working in a remote location and possibly not familiar with standard policy. Mr. Nihoul’s outrageous behavior and callous disregard for the rights of its employees warrants punitive damages. CSX’s conduct in retaliation against an employee for filing a FRSA complaint with OSHA exhibited reckless disregard for the law and complete indifference to Young’s rights and the rights of CSX’s other employees. Discharging an employee for claiming violations of FRSA functions to chill employees from exercising their most basic rights under FRSA.

Damning language indeed that places CSX’s dealings with its employees in a highly questionable light. The BMWE union persuaded a Railway Labor Act Public Law Board arbitrator to order Young reinstated as a trackman with all back wages and seniority intact, but that was not enough to remedy the FRSA violation. So OSHA ordered CSX to pay $80,000 in emotional distress damages, $100,000 in punitive damages, and another $6,081 in make whole remedies (including orthodontic fees, late mortgage payment fees, and bankruptcy attorney fees). Here is the complete text of OSHA’s Findings and Order in Young v. CSX.

The take away is that OSHA will be relentlessly vigilant in protecting workers who file FRSA complaints. Railroads better think twice, or three times, before taking adverse action against a worker who has filed a FRSA complaint. Because even if the underlying FRSA complaint lacks merit, the mere act of filing a complaint is a protected activity that shields the worker from any subsequent retaliatory conduct by rail management. For more on the FRSA, go to the free Rail Whistleblower Library.

Important developments in the Federal Rail Safety Act just keep coming. Here are a couple.

OSHA has issued another punitive damages award against Metro North Railroad, this time for harassing an injured employee by interfering with his medical treatment and recovery. The Finding in Cortese v. Metro North Railroad is especially notable because it recognizes that (a)(4) gives OSHA jurisdiction to remedy a (c)(1) interference with medical treatment. In other words, interference with an injured worker’s medical treatment is just another form of discriminatory adverse action that can be remedied under (a)(4). So Cortese is a sign OSHA has found a way to finesse any questions regarding the direct enforceability of (c)(1). From now on, any violations of (c)(1) can be remedied under the aegis of (a)(4). Here is the full text of OSHA’s Finding in Cortese v. Metro North Railroad.

Here is a quote from OSHA’s Press Release:

“Metro-North has exhibited an unacceptable pattern of penalizing workers who report injuries, interfering with their medical treatment and forcing them to work in violation of medical instruction,” said Robert Kulick, OSHA’s regional administrator in New York. “The whistleblower provisions of the Federal Railroad Safety Act were designed to prevent such behavior toward workers. We will continue to order corrective action whenever we identify this type of discrimination and intimidation.”

Also, for an interview regarding the significance of the “million dollar message” sent by the first FRSA punitive damages jury verdict, go to Virginia and North Carolina personal injury attorney Richard Shapiro’s blog at InjuryBoard.

 

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.

Yesterday, at the end of the first Federal Rail Safety Act jury trial in the nation, I asked the federal jury to send a message to every railroad in the country. An unmistakable message that singling out injured workers for discipline while ignoring management’s role will not be tolerated. An unmistakable message that rail management’s unsafe culture of retaliation must stop.

And send a message it did. The jury responded with a historic punitive damages award of $1 million, in a case where my client’s only economic loss was $1,428 (for his lost wages from the 7 days he spent at the trial). More on the lessons of this historic verdict later, but the message is clear: juries hate railroads that discipline injured workers, and maximum punitive damages will be routine in every FRSA case, no matter how small the economic loss.

For an article on this verdict, click here.  For more information on this powerful new law that is changing the landscape of rail labor relations, go to the free Rail Whistleblower Library(and for automatic notice of breaking developments, enter your email address in the free subscription box to the left).

In a major decision clarifying the scope of the Federal Rail Safety Act, OSHA confirms that a railroad’s denial, delay, or interference with an injured employee’s medical treatment constitutes adverse action recoverable under FRSA Section (a)(4). Section (a)(4) protects employees from adverse action due to the reporting of a work-related injury, and OSHA now recognizes that a railroad’s interference with an injured employee’s medical treatment is a form of impermissible adverse action prohibited by Section (a)(4).

Vinny Ruffolo is a laborer at Metro North Railroad’s Harmon Diesel Shop. After he reported a cut finger injury, Metro North interfered with his medical treatment, assigned him duties contrary to his medical restrictions, and harassed him for following the orders of his treating doctor. Despite the fact no discipline was involved, OSHA nevertheless ruled Metro North violated Section (a)(4)’s prohibition against adverse action related to the reporting of an injury. The words of OSHA are worth quoting:

The evidence suggests that Metro North’s actions were motivated, at least in part, by a desire to minimize the injury because by doing so, Metro North could avoid reporting the injury and any lost time to the Federal Rail Administration (FRA). . . . Metro North’s actions here send the message to this employee and all other employees that they are better off not reporting injuries at all. Such actions, if they successfully dissuade an employee from reporting an injury, result in the skewing of information provided to the FRA and potentially jeopardize employee safety.

OSHA went on to note that such conduct demonstrates “a reckless disregard for the rights of its employees to report a work-place injury,” and “demonstrates this was not a random act but rather an extension of an entrenched culture to retaliate against employees who report work-related injuries. . . . the Facilities Director’s deliberate actions were intended to chill the workforce and dissuade employees from reporting future accidents, and calls for the imposition of punitive damages.”

OSHA’s Press Release states: “Metro-North’s actions in this case are unacceptable and send a message of intimidation to its workforce,” said Robert Kulick, OSHA’s regional administrator in New York. “Railroad employees must be free to report injuries without fear that their employers will harass them, ignore medical instructions or force them to work under conditions that could impair the healing process or cause more harm.”

Bottom line? Even in the absence of any disciplinary action, the FRSA protects employees who report work-related injuries from interference with their medical treatment. For the full OSHA Decision in Ruffolo v. Metro North Railroad.

In an encouraging sign to whistleblowers, the Department of Labor has elevated the status of its Office of the Whistleblower Protection Program (OWPP) so it now reports directly to the Head of OSHA, Assistant Secretary Dr. David Michaels. This puts whistleblower protection on an equal footing with OSHA’s health and safety enforcement, and increases the OWPP’s access to the resources it needs to accomplish its mission. It means the new Director of the OWPP, Sandra Dillion, now has the ear of Dr. Michaels and the Solicitor of Labor, giving her the ability to quickly resolve issues that previously would languish in lower level limbo. And she will preside over one of the few federal programs set to grow, with President Obama calling for a 39% increase in the OWPP’s budget and the hiring of 37 new whistleblower investigators.

By giving whistleblower protection a priority, the DOL is moving forward with its commitment to strengthen the voice of employees in the workplace.  And it means more support for railroad workers who stand up and blow the whistle on rail management’s culture of retaliation.  For the DOL Press Release announcing this restructuring, click here.

WARNING UPDATE: see the 3rd Circuit’s decision in PATH v. U.S. DOL.

Any rail worker absence ordered by a treating doctor can no longer be used for attendance discipline purposes. That is the message of a ground-breaking decision interpreting the scope of FRSA protected medical treatment.

Subsection (c)(2) of the FRSA prohibits railroads from disciplining employees for following the orders or treatment plan of their treating physician. In Bala v. PATH, ALJ Theresa C. Timlin explains why the FRSA protects ALL employees–not just on the job injured employees–from such discipline.

When PATH signal repairmen Chris Bala’s family physician ordered him not to work in order to recover from a non-work related medical condition that rendered him unfit for duty, he duly notified the Railroad and followed his doctor’s medical treatment plan by staying home. However, that absence triggered a charge he was in violation of PATH’s attendance policy, and, after the usual kangaroo court, Bala was found guilty and suspended for three days.

OSHA found PATH violated the FRSA, PATH objected, and a full trial was held before ALJ Timlin.  Her Decision is the first to apply Section (c)(2), and is remarkable for its fidelity to the letter and spirit of the FRSA..

Judge Timlin begins by stressing the purpose of the FRSA is “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” She points out that “in enacting the FRSA, Congress stated that ’employees should not be forced to choose between their lives and their livelihoods.'”

Applying the cardinal principals of statutory interpretation to subsection (c)(2), she notes that its language “plainly and unambiguously prohibits railroads from suspending an employee for calling out sick pursuant to orders from a treating physician that the employee is not fit for duty.”

She goes on to reject the argument that the language of (c)(1) somehow qualifies or limits the scope of (c)(2): “when Congress included the phrase ‘during the course of employment’ with regard to emergency medical care in subsection (c)(1), but omitted that phrase with regard to treatment plans in subsection (c)(2), it acted purposely, and did not intend to limit the protection of (c)(2) only to treatment plans involving on-the-job injuries.”

Her conclusion is worth quoting at length:

After reviewing the FRSA’s text and purpose, I find it clear that Section 20109(c)(2) exists not only to encourage employees suffering on-the-job injuries to report unsafe conditions to their superiors without fear of reprisal, but also to discourage sick or injured workers from returning to duty while their impairment poses a threat to the safety of railroad passengers and fellow employees. I thus find that Section 20109(c)(2) applies equally to treatment plans arising out of on-duty and off-duty injuries.

And in fact all railroads have mandatory safety rules similar to this one on Metro North Railroad: “Be alert and attentive when performing duties and be properly rested when reporting for duty.” That is because a rail worker who is not alert and attentive or is otherwise unable to perform the duties of his job is jeopardizing the safety of himself, his fellow workers, and the public. Such an employee constitutes a hazardous safety condition, and for such an employee to report to work would be a violation of the railroad’s own safety rules.

So when a worker notifies the railroad he is in such a condition, he is protected from discipline under subsection (b)(1)(A) because he is notifying the railroad of “a hazardous safety condition.” And when he follows the medical treatment plan of his treating physician and stays home, he also is protected from discipline under subsection (c)(2).

Bottom line is, if an employee notifies the railroad that his treating doctor has ordered him not to work, the railroad cannot use that absence for disciplinary purposes. And it doesn’t matter is the absence is due to sickness, an off duty injury, or an on duty injury. From now on, railroads who continue to discipline employees for such absences will pay the price in FRSA damages and attorney fees. For more on the FRSA, go to the free Rail Whistleblower Library.

The burden of proof applicable to a Federal Rail Safety Act whistleblower protection case is markedly different from a Title VII discrimination case. And much more favorable to the employee.

Title VII cases have a three step burden of proof: the employee establishes a prima facie case, the employer raises a non-discriminatory reason, and then the employee has to prove the stated reason was a pretext. All by a preponderance of the evidence standard.

But the FRSA has the same burden of proof as AIR21, the whistleblower statute that covers airline employees. And only two steps apply: (1) if the railroad worker proves by a preponderance of the evidence that his protected activity was a “contributing factor” in the railroad’s adverse action, then (2) the burden shifts to the railroad to prove by “clear and convincing evidence” that it would have taken the same adverse action even in the absence of the worker’s protected activity. And “clear and convincing evidence” means something is reasonably certain, a much higher standard of proof than a mere “more likely than not” preponderance of the evidence.

And under the FRSA’s “contributing factor” standard, an employee does not have to prove that the railroad’s stated reason is a pretext. In the words of OSHA, a railroad worker “need not necessarily prove that the railroad’s articulated reason was a pretext in order to prevail, because the worker alternatively can prevail by showing that the railroad’s reason, while true, is only one of the reasons for its conduct and that another reason was the worker’s protected activity.” OSHA’s Final Interim Rule Summary of Section 1982.104, 29 CFR 1982.104. That is because a “contributing factor” is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.”

So don’t let anyone confuse the apples of Title VII with the oranges of FRSA.