As an employer should know, retaliating against employees usually leads to problems.
Metro-North’s actions against an injured worker have resulted in the largest punitive damages ever in a retaliation case under the Federal Railroad Safety Act.
A recent investigation by the U.S. Labor Department’s Occupational Safety and Health Administration uncovered these details and revealed that the worker, who is employed as a coach cleaner for the commuter rail carrier, was retaliated against after reporting the knee injury he suffered on Nov. 17, 2011.
As a result, the company has been ordered to pay the employee a total of $250,000 in punitive damages, $10,000 in compensatory damages and to cover reasonable attorney fees.
While driving the injured employee to the hospital, a Metro-North supervisor also intimidated the worker, reportedly telling the worker that railroad employees who are hurt on the job are written up for safety and are not considered for advancement or promotions within the company.
Unofficial reports from other employees appear to corroborate the supervisor’s claims.
Not the First Time
For instance, one worker smashed her foot with a barrel while on the job, yet she did not file an accident report and showed up to work every day using crutches in hope of keeping her injury record clean. Another worker was injured when her hand was caught in a broken door but, like her coworker, she did not fill out an incident report for fear of reprisal.
Shortly after the Connecticut employee reported the work-related injury, Metro-North issued disciplinary charges against him.
The employee filed an initial Federal Railroad Safety Act anti-discrimination complaint with OSHA on April 19, 2012. An amended complaint was filed on April 9, 2013, after the railroad issued additional disciplinary charges against him.
“When employees, fearing retaliation, hesitate to report work-related injuries and the safety hazards that caused them, companies cannot fix safety problems and neither employees nor the public are safe,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “In this case, the Metro-North’s conduct was deliberate and discriminatory, and we have assessed the maximum amount in punitive damages allowed under the law.”
OSHA’s investigation found that the employee engaged in protected activity when he reported his injury and filed his complaints with OSHA, that Metro North knew these were protected activities and that these protected activities were contributing factors in Metro North’s subsequent disciplining of the employee.
The National Transportation Safety Board (NTSB) published a preliminary Special Investigation Report dated Nov. 19, 2014, regarding several recent accidents, including fatalities, involving Metro-North. The NTSB noted in their findings that “Metro-North Railroad did not have an effective program that encouraged all employees to report safety issues and observations.” OSHA’s findings here provide another example of this: if employees are discouraged from reporting injuries, the employees and the public are endangered as Metro-North cannot correct the conditions which caused the injuries.
In addition to paying punitive and compensatory damages, OSHA ordered Metro-North to expunge the employee’s record of all charges and disciplinary action. The company must also conduct training for all supervisors and managers on employee whistleblower rights and post a notice to employees of their whistleblower rights. Both the employee and the railroad have 30 days from receipt of OSHA’s findings to file objections and request a hearing.
Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. www.reduceyourworkerscomp.com. Contact: kstack@reduceyourworkerscomp.com.
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