On February 28, 2013, OSHA ordered Union Pacific Railroad (UP) to reinstate the employment of and pay over $309,000 ($150,000 in punitive damages, $87,600 in compensatory damages, $71,700 in back pay with interest, plus attorney’s fees) to a locomotive conductor who alleged he was discharged for reporting a co-worker’s on-the-job injury. OSHA Regional News Release, 13-276-SEA (SF-22) (Feb. 28, 2013).
Background. In July of 2009, a UP locomotive conductor reported that an engineer injured his elbow on a steel armrest that was missing its padding. OSHA determined that UP retaliated against him for reporting the injury in violation of the Federal Railroad Safety Act (FRSA). This determination was the third such order issued against UP in 13 months. UP maintained that the employee was discharged for violating safety rules and announced its intent to appeal.
Implications. When considering this preliminary order, it should be noted that, since OSHA obtained FRSA enforcement authority in August of 2007, it has received more than 1,200 FRSA complaints. Employers in this industry should anticipate increased agency action in response to the high volume of FRSA complaints. In fact, as noted in our January 25, 2013 post, OSHA recently imposed strict penalties in whistleblower matters and reached significant whistleblower-related accords with other railroad employers. Accordingly, employers are well advised to review their policies, protocols and procedures to ensure they are not reasonably construed as discouraging reporting of injuries or violations of rules and regulations. In addition, employers should ensure a robust evaluation and review process to investigate on-duty injuries. Employers also should modernize and strengthen policies and training programs to ensure they focus on FRSA anti-retaliation requirements.