BNSF Ordered to Compensate, Rehire Fired Whistle-Blowers

By Roy Maurer May 23, 2014

The Occupational Safety and Health Administration (OSHA) has ordered BNSF Railway Co. to pay more than $526,000 in back wages and other damages to two employees fired after they reported work-related injuries.

According to OSHA, the workers were fired in 2010 and 2011 for reporting workplace injuries that occurred at the company’s Havre, Mont., terminal.

The workers complained to OSHA, alleging their firing violated anti-retaliation provisions of the Federal Railroad Safety Act. After investigating the complaints, OSHA concluded that their injury reports had factored into their firing and ordered BNSF to pay back wages with interest, damages and attorney’s fees. The employees’ work records will be expunged and the railroad has been ordered to rehire them.

“An employer cannot retaliate against employees who report an injury,” said Gregory Baxter, OSHA’s regional administrator in Denver. “OSHA recognizes that employers can legitimately have, and apply, policies to require prompt injury reporting; however, that is not what happened here. When employers mask their retaliatory intent through application of a policy or rule, they violate the law,” he said in a news release.

BNSF spokeswoman Roxanne Butler said in a news statement that the railroad will appeal the ruling.

Eighteen months ago, BNSF agreed to change its policies on reporting workplace injuries and handling whistle-blower complaints as part of an agreement with OSHA.

BNSF signed an accord Jan. 15, 2013, announcing the railroad’s voluntary revision of several personnel policies that OSHA alleged violated the whistle-blower provisions of the Federal Railroad Safety Act and dissuaded workers from reporting on-the-job injuries.

“The reporting of an injury, regardless of an employer’s policy or deadline, is a protected activity under well-established law,” Baxter said. “The railway carrier failed to demonstrate that it would have taken the same unfavorable personnel action in the absence of the behavior protected by the Federal Railroad Safety Act.”

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistle-blower rights, including fact sheets, is available here.

OSHA enforces the whistle-blower provisions of 22 statutes, protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, maritime and securities laws.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy


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