For workers in the railroad carrier industry, blowing the whistle is too often a move that management frowns upon.
Just this month, the Occupational Safety and Health Administration (OSHA) ordered Norfolk Southern Railway Co. to pay over $1 million to three workers who were fired after reporting workplace injuries. In a separate case, OSHA ordered Union Pacific to pay $350,000 and reinstate a worker who was fired after reporting an injury.
Retaliation – usually in the form of firing – for reporting workplace injuries is such a rampant problem in the railroad industry that, in 2008, the federal government amended the Federal Railroad Safety Act to specifically prohibit “discipline of employees for requesting medical treatment or for following medical treatment orders,” and transferred the enforcement of the act from the National Railroad Adjustment Board to the Department of Labor.
The discrimination persisted, however, and last July, OSHA and the U.S. Department of Transportation’s Federal Railroad Administration signed a memorandum of agreement in hopes of better enforcing whistle-blower provisions.
Today, OSHA continues to receive more complaints under the FRSA than any of the other protection provisions established for whistle-blowers in specific industries, such as nuclear power, airlines, consumer product, food safety, pipeline, nuclear power and securities.
But many in the legal field are talking about a ruling, issued in February by the U.S. Court of Appeals, which may provide an important statute for how retaliation in whistle-blowers’ cases – in the railroad industry and beyond –are determined.
In ruling in favor of a conductor-flagman – who was fired for seeking emotional leave after witnessing a death on the job, the court translated the FRSA as, essentially, shifting some of the burden of proof to the employer.
In typical employment discrimination cases, after the employer provides a legitimate nondiscriminatory justification for firing an employee or issuing another disciplinary action, the plaintiff must then prove that the justification is merely a pretext for a discriminatory motive.
In this case, however, it was established that the worker only had to show that the “protected activity” (reporting a work-related injury or safety concern) was a “contributing factor” for the retaliation – which shifts the burden to the employer to prove that, in this case, the worker would have been fired with or without the incident.
It likely won’t take long for the implications of this case to be challenged. In response to an inquiry from RailwayAge magazine regarding OSHA’s ruling against Norfolk Southern, a spokesperson stated that “Norfolk Southern disagrees with OSHA’s decisions, which are the result of a flawed, one-sided procedure in which the railroad was not permitted to question the employees under oath or cross-examine witnesses. We will appeal the decision to an administrative law judge. This appeal will have the effect of voiding the decision and starting over using normal legal proceedings.”
Employees in any industry who believe that they have been retaliated against for “engaging in protected conduct” can request an investigation by OSHA’s Whistle-blower Protection Program. More information is available at www.whistleblowers.gov.