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Suspended whistleblower awarded big settlement

December 16, 2010
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A worker disciplined by for reporting a work-related injury was the victim of retaliation, according to a whistleblower investigation conduction by the U.S. Department of Labor’s Occupational Safety and Health Administration. OSHA has ordered the Burlington Northern and Santa Fe Railway Co. to pay a Kansas City, Kan.-based employee $95,096, representing back wages, compensatory damages, attorney's fees and punitive damages, following a whistleblower case investigation.

An OSHA investigation upheld the employee's allegation that the Ft. Worth, Texas-based railroad issued him a Level S 30-day record suspension and one-year probation in retaliation for reporting a work-related injury. The investigation found that officials from the railroad disciplined the complainant for not using the proper tool to perform a work task even though the evidence showed that the proper tools were not available and were not placed in their appropriate location until after the complainant's injury. This was contrary to the usual company practice, in which management takes no issue with workers using a different tool so long as the work gets done in a timely manner.

"An employer does not have the right to retaliate against employees who report work-related injuries," said Charles E. Adkins, OSHA's regional administrator in Kansas City, Mo. "While OSHA is best known for ensuring the safety and health of employees, it is also a federal whistleblower protection agency."

Further evidence revealed that many of the railroad's policies, such as issuing points resulting in increased scrutiny for workers who suffer work-related injuries and giving gift cards to those work crews that go injury-free for a period of time, discourage workers from reporting on-the-job injuries. The railroad carrier was ordered to provide whistleblower rights information to its employees.

OSHA conducted the investigation under the whistleblower provisions of the Federal Railroad Safety Act as amended by the 9/11 Commission Act of 2007. Railroad carriers are subject to the provisions of 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 activities protected by the act. Either party in the case can file an appeal to the department's Office of Administrative Law Judges.

OSHA enforces the whistleblower provisions of the FRSA and 19 other laws protecting employees who report violations of various securities laws; trucking, airline, nuclear, pipeline, environmental and rail workplace safety and health regulations; and consumer product safety laws. Under the various whistleblower provisions enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns, or provide protected information to the employer or to the government.

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