Whistleblower Protections for Rail Workers
Individuals working for railroad carriers are protected from retaliation for reporting potential safety or security violations to their employers or to the government
What Is Protected Activity ?
If your employer is covered under the Federal Railroad Safety Act (FRSA), it may not discharge you or in any other manner retaliate against you because you provided information to, caused information to be provided to, or assisted in an investigation by a federal regulatory or law enforcement agency, a member or committee of Congress, or your company about an alleged violation of federal laws and regulations related to railroad safety and security, or about gross fraud, waste or abuse of funds intended for railroad safety or security. Your employer may not discharge or in any other manner retaliate against you because you filed, caused to be filed, participated in, or assisted in a proceeding under one of these laws or regulations. In addition, you are protected from retaliation for reporting hazardous safety or security conditions, reporting a work-related injury or illness, refusing to work under certain conditions, or refusing to authorize the use of any safety- or security- related equipment, track or structures. You may also be covered if you were perceived as having engaged in the activities described above.
In addition, you are also protected from retaliation (including being brought up on charges in a disciplinary proceeding) or threatened retaliation for requesting medical or first-aid treatment, or for following orders or a treatment plan of a treating physician.
Your employer may be found to have violated FRSA if your protected activity was a contributing factor in its decision to take adverse action against you. Such actions may include:
- Firing or laying off
- Denying overtime or promotion
- Denying benefits
- Failing to hire or rehire
- Making threats
- Reassignment affecting promotion prospects
- Reducing pay or hours
- Disciplining an employee for requesting medical or first-aid treatment
- Disciplining an employee for following orders or a treatment plan of a treating physician
- Forcing an employee to work against medical advice
Time Limits on Whistleblower Protection
180 Days (Rule of Thumb: Figure 6 months and count back 5 days from the last day). Example; dismissed March 3rd, go to September 3rd, subtract 5 days, so the safe date is August 29th.
Note: The time begins to run the day the event happens: example
Date of Dismissal (date you get the dismissal letter, but to be safe, use the date on the dismissal letter itself).
Date disqualified from job (if verbally ordered off property, may date from that day).
Do not wait until your on-property discipline appeal process is through, you are not required to exhaust your contract remedies before filing for §20109 protections. Delays in filing for §20109 protections will render your claimproceedurally barred for filing later than the 180 day time limit.
For Big Railroads, A Carload of Whistleblower Complaints.
Nouveau Carpetbaggers openly blatant in ignoring the provisions of [federal law] | FairWarning.org
Railroad companies are 7 of the top 10 leading targets of retaliation complaints for cases involving workers who reveal hazards or engage in protected activities, such as reporting injuries.
Under the 22 federal whistleblower laws administered by the Occupational Safety and Health Administration, American workers who disclose hazards or engage in other “protected activity” are shielded against retaliation by their employers. The protected activities vary by industry, but include reporting injuries, disclosing the misuse of public funds and refusing to perform dangerous tasks that would violate safety rules. OSHA protection covers, among many others, truck drivers, public transit employees, nuclear plant operators and, since 2007, railroad workers. Yet despite the broad safeguards for railroaders – or perhaps partly because of them – complaints of illegal retaliation abound in the industry.
From October 2007 through June 2015, OSHA figures show, railroad workers filed more than 2,000 retaliation complaints, although the pace has slowed lately. Among the top 10 targets of complaints over the nearly eight-year period, seven were railroads, led by the two largest U.S. railroads, BNSF (409 complaints) and Union Pacific (360).
OSHA investigators and Labor Department administrative law judges repeatedly have upheld complaints against the railroads, more than half of which involve illegal retaliation against workers who report personal injuries.Read More... source article (3.8mb)
Union Pacific Railroad retaliates against another injured worker
OSHA finds retaliation by railroad, orders worker to be paid $100K
SAN FRANCISCO – An investigation by the U.S. Department of Labor's Occupational Safety and Health Administration has determined that management of the Union Pacific Railroad added insult to injury when it blamed a worker in Roseville who was hurt on-the-job and then retaliated against him for reporting his injury in February 2011.
Investigators established that Union Pacific violated the Federal Railroad Safety Act when the company retaliated against the employee for reporting to his supervisors that he was hurt while lifting materials and equipment. As a result, OSHA has ordered the railroad to pay the worker $100,000 in punitive and compensatory damages.
This case follows a pattern of behavior by Union Pacific toward its injured employees. OSHA recently reported that the railroad has faced more than 200 whistleblower complaints nationwide since 2001.
"Union Pacific has repeatedly retaliated against workers who report on-the-job injuries," said Barbara Goto, acting OSHA regional administrator in San Francisco. "That flies in the face of the protections that the FRSA affords."
After being hurt, the employee in Roseville reported his injury. Although evidence at an investigatory hearing proved otherwise, Union Pacific charged the employee with causing his own injury by not using proper ergonomic and safety techniques. The company suspended him without pay for five days.
In November 2012, Union Pacific apparently changed course. The company expunged the employee's record and paid him for the day he attended the investigation hearing and the five days of his suspension. Since the company voluntarily corrected the retaliation, OSHA assessed $50,000 in punitive damages.
Any of the parties in this case can file an appeal with the department's Office of Administrative Law Judges.
Union Pacific is the principal operating company of Union Pacific Corp, which functions in 23 states across the western two-thirds of the United States. It has 47,000 employees and operates 8,000 locomotives over 32,000 route miles.
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, worker safety, public transportation agency, railroad, 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. 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.