Metro-North Commuter Railroad Company'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 OSHA found that the worker, who was 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.
Intimidation on the way to the hospital
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.
Fear of reprisal
Unofficial reports from other employees appear to corroborate the supervisor's claims. 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."
Protected activities
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 November 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 before the Labor Department's Office of Administrative Law Judges.
Resources
OSHA enforces the whistleblower provisions of the FRSA Act 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. Employee rights information is available online at http://www.whistleblowers.gov.
