US Department of Labor finds 2 companies in violation of Federal Railroad Safety Act for retaliating against 3 Midwest whistleblowers

CHICAGO – The U.S. Department of Labor has ordered two railroad companies to pay three workers a total of $650,729.14 in back wages and damages for retaliating against them for reporting workplace injuries and safety concerns. The orders resulted from investigations conducted by the Chicago office of the department's Occupational Safety and Health Administration, which were initiated upon receiving complaints from the employees.

"It is critically important that railroad employees in the Midwest and across the nation know that OSHA intends to defend the rights of workers who report injuries and safety concerns," said Dr. David Michaels, assistant secretary of labor for occupational safety and health. "We will use the full force of the law to make sure that workers who are retaliated against for reporting health and safety concerns are made whole."

OSHA conducted the investigations under the whistleblower provisions of the Federal Railroad Safety Act, as amended by the 9/11 Commission Act of 2007. Railroad carriers are subject to the FRSA, which protects employees who report violations of any federal law, rule or regulation relating to railroad safety or security, or who engage in other protected activities.

OSHA determined that Illinois Central Railroad violated the FRSA by retaliating against two employees in separate incidents for reporting workplace injuries at the Markham Railroad Yard in Markham, Ill.

The first employee, a conductor, was injured in August 2008 when he was knocked unconscious and sustained injuries to his shoulder, back and head while switching railcars in the Markham Yard. A knuckle that connects the cars allegedly broke, causing the cars to suddenly jolt and the employee to fall. The railroad held an investigative hearing and consequently terminated the conductor, alleging that he had violated safety rules. However, OSHA found that the worker was terminated in reprisal for reporting a work-related injury. The department's order requires the railroad to pay the conductor a total of $269,707.27, which includes $81,393.49 in back wages, $4,695.78 in vacation pay, $4,368 for medical bills and $4,250 in attorney's fees, as well as punitive damages of $100,000 and compensatory damages of $75,000.

The second employee, a carman, reported an arm/shoulder injury that occurred in February 2008. While walking along a platform to inspect railcars in the poorly lit yard, the carman slipped on ice and tried to catch himself, which jolted his left arm and shoulder. The railroad held an investigative hearing and consequently terminated the carman's employment for allegedly violating the company's injury reporting procedures. OSHA concluded that the carman had properly reported the injury, and has ordered the railroad to reinstate the worker if he is medically released by his physician and passes a functional capacity evaluation. Additionally, the railroad must pay the employee a total of $154,694, including $14,694 in back wages, punitive damages of $75,000 and compensatory damages of $65,000. Illinois Central Railroad also must provide a copy of OSHA's "Whistleblower Protection for Railroad Workers" fact sheet to every employee at the Markham Yard.

In the third incident, OSHA determined that Chicago Fort Wayne & Eastern Railroad violated the FRSA by terminating a conductor in retaliation for raising concerns about workplace safety while serving in his role as local chairman of the union and for reporting that a trainmaster had instructed him to operate a train in violation of certain Federal Railroad Administration rules in June 2009 near Fort Wayne, Ind. The railroad alleged that the conductor was terminated for failing to pass a locomotive engineer certification test. OSHA's order requires the railroad to provide the conductor with training and another opportunity to pass the test, and then upon his passing the test to reinstate his employment under the same terms and conditions as if he had passed the exam in 2009. Furthermore, the railroad must pay the conductor a total of $226,327.87, including back wages of $67,736.12, compensatory damages of $75,000, punitive damages of $75,000 and attorney's fees of $8,591.75.

The respondents and the complainants have 30 days from receipt of these findings to file objections and to request a hearing before an administrative law judge.

OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, maritime and securities laws. Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government.

On July 16, OSHA and the U.S. Department of Transportation's Federal Railroad Administration signed a memorandum of agreement to facilitate coordination and cooperation with enforcement of the FRSA's whistleblower provisions. Between 2007 and 2012 to date, OSHA received more than 900 whistleblower complaints under the FRSA. Almost 63 percent involved an allegation that a worker was retaliated against for reporting an on-the-job injury.

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA's Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Editor's note: The U.S. Department of Labor does not release the names of employees involved in whistleblower complaints.