On July 16, 2012 the Federal Railroad Administration (FRA) and OSHA issued a Memorandum of Agreement to facilitate coordination between agencies regarding the enforcement of the Federal Railroad Safety Act's whistleblower provision.  The memorandum establishes procedures for the agencies to follow for handling whistleblower complaints and states that the agencies will jointly develop training to assist FRA enforcement staff in recognizing complaints of retaliation, and to assist OSHA enforcement staff in recognizing potential violations of railroad safety regulations revealed during whistleblower investigations.  The agencies also sent a joint letter to railroad and transportation associations that highlights what they believe to be troubling injury reporting trends.

In the two weeks following the signing of this memorandum, OSHA issued three significant orders—totaling over $688,000 in penalties—to railroad employers following investigations of alleged FRSA whistleblower discrimination. 

  • On July 19 OSHA issued an order finding that a Midwest railroad violated the FRSA by retaliating against two employees in separate incidents for reporting workplace injuries at the Markham Railroad Yard in Markham, Ill. OSHA’s order requires the railroad to pay one employee a total of $269,707.27, which includes $81,393.49 in back wages, $4,695.78 in vacation pay, $4,368 for medical bills and $4,250 in attorney's fees, as well as punitive damages of $100,000 and compensatory damages of $75,000.  The railroad was also ordered to pay a second employee a total of $154,694, including $14,694 in back wages, punitive damages of $75,000 and compensatory damages of $65,000. Finally, the railroad was ordered provide a copy of OSHA's "Whistleblower Protection for Railroad Workers" fact sheet to every employee at the rail yard.
  • Also on July 19, OSHA issued an order finding another Midwest railroad to have violated the FRSA by terminating a conductor in retaliation for raising concerns about workplace safety while serving in his role as local chairman of the union and for reporting that a trainmaster had instructed him to operate a train in violation of certain Federal Railroad Administration rules in June 2009 near Fort Wayne, Ind. OSHA's order requires the railroad to provide the conductor with training and another opportunity to pass the test, and then upon his passing the test to reinstate his employment under the same terms and conditions as if he had passed the exam in 2009. The railroad was also ordered to pay the conductor a total of $226,327.87, including back wages of $67,736.12, compensatory damages of $75,000, punitive damages of $75,000 and attorney's fees of $8,591.75.
  • On July 25 OSHA announced that it had ordered a major national railroad to pay an employee $38,561.92 in damages, including $25,000 in punitive damages, for alleged retaliation against an employee for reporting a work-related injury. OSHA supported the employee's allegation that the railroad issued a 10-day unpaid suspension in retaliation for reporting an injury that occurred on July 8, 2011, while he was working as a switchman in the railroad's Topeka, Kansas, yard.

FRSA whistleblower complaints have been increasing in recent years.  Between 2007 and 2012, OSHA received more than 900 whistleblower complaints under the FRSA, and almost 63 percent involved an allegation that a worker was retaliated against for reporting an on-the-job injury.  In issuing these orders and formalizing the agreement with the FRA, OSHA is making clear that rail safety whistleblowers are a priority.  "It is critically important that railroad employees in the Midwest and across the nation know that OSHA intends to defend the rights of workers who report injuries and safety concerns," said Dr. David Michaels, assistant secretary of labor for occupational safety and health. "We will use the full force of the law to make sure that workers who are retaliated against for reporting health and safety concerns are made whole."

In light of these developments, it is vitally important that employers take steps to ensure that their policies and practices do not discourage injury/illness reports, and that the proper means are in place to address concerns raised regarding safety in the workplace.