Companies that try and mute workers wanting to report injuries on the job can face a substantial fine, not to mention a bad case of public relations.
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OSHA Investigations Turning Up Many Cases of Wrongful Termination
In a recent case that could have involved efforts to cover up injuries, Norfolk Southern Railway Co. was ordered to pay $1,121,099 to three workers following an investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), which found that the company violated the whistleblower provisions of the Federal Railroad Safety Act.
In a pair of investigations conducted by OSHA staff in Chicago and Pittsburgh, it was discovered that three employees were wrongfully fired for reporting workplace injuries. Along with monetary remedies, the company was ordered to expunge the disciplinary records of the three whistleblowers, post a notice regarding employees’ whistleblower protection rights under the FRSA and train workers on these rights.
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.
“The Labor Department continues to find serious whistleblower violations at Norfolk Southern, and we will be steadfast in our defense of a worker’s right to a safe job – including his or her right to report injuries,” said acting Secretary of Labor Seth Harris. “When workers can’t report safety concerns on the job without fear of retaliation, worker safety and health suffer, which costs working families and businesses alike.”
Worker Terminated For Reporting Eye Injury
One investigation involved a crane operator based in Fort Wayne, Ind., who was removed from service after reporting an eye injury requiring the extraction of a sliver of metal and rust ring from his eye.
The injury occurred while he was operating a crane in support of a bridge-building operation in Albany, Ind. The employee was taken out of service and formally terminated on Aug. 24, 2010, after an internal investigation determined he had made false statements concerning the injury.
OSHA’s investigation concluded that the worker would not have been removed from hi
s job if he had not reported the injury.
The agency has ordered the railroad to pay him a total of $437,591.70 in damages, which includes $100,000 in compensatory damages for pain and suffering, $175,000 in punitive damages, and $156,518.94 in back wages and benefits. It also includes compensation of $6,072.76 to the crane operator for penalties incurred when he had to cash in savings bonds prior to their maturity date after being terminated. In addition to damages, the company has been ordered to pay reasonable attorney fees. Further, OSHA has ordered the railroad to reinstate the worker to the proper seniority level, with vacation and sick days that he would otherwise have earned.
2 Employees Terminated For Reporting Injury From Collision
OSHA’s second investigation involved a thermite welder and a welder’s helper based in western Pennsylvania. Both employees had worked at the railroad for more than 36 years without incident when they reported injuries sustained as a result of an accident caused by another vehicle that ran a red light and hit a second vehicle, which in turn collided with the company truck in which they were riding.
The employees initially reported minor shoulder area pain plus some stiffness and soreness. Later, when questioned by management, they initially declined medical treatment, but as the pain increased, sought and received treatment at a local hospital. They were then taken out of service pending an investigative hearing and formally terminated. Management concluded that the employees’ reports about their condition were false and conflicting and constituted misconduct.
OSHA’s investigation found that the employees were terminated for reporting injuries to management. The agency has ordered the railroad to pay them $683,508 in damages, including $300,000 in punitive damages; $233,508 in lost wages, benefits and out-of-pocket costs; and $150,000 in compensatory damages for pain and suffering. Interest on back pay due will accrue daily until the employees are paid. In addition to damages, the company has been ordered to pay reasonable attorney fees.
Lastly, these actions come in the wake of several other orders issued by OSHA against Norfolk Southern Railway Co. in the past two years.
Employer Actions Have Created Chilling Effect In Railroad Industry
OSHA’s investigations discovered that the company continues to retaliate against employees for reporting work-related injuries, and these actions have effectively created a chilling effect in the railroad industry.
Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.
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