BY: Arvin J. Pearlman | IN: Employment Law, Railroaders
Earlier this year, the Occupational Safety and Health Administration (OSHA) ordered Amtrak to rehire an employee fired for warning the railroad about possible safety violations. In addition to citing Amtrak for violations of the Federal Railroad Safety Act (FRSA), OSHA also awarded the whistleblower employee a total of $892,551, which is comprised of $723,332 in back wages plus $34,218 in interest; $100,000 in punitive damages; $35,000 in compensatory damages; plus reasonable attorney’s fees and costs. It’s another reason for the need of awareness campaigns like U.S. Rail Safety Week.
Amtrak terminated the employee – a supervisory special agent – in June 2011 after he raised concerns multiple times about a contractor conducting tests at certain Amtrak tunnel projects. The agent brought forward evidence showing the contractor had been convicted of fraud in a New York court, in connection with work to examine and test the concrete in buildings around the city.
The agent initially brought his concerns forward in 2010. Soon after, he was given his first negative performance review in his long career with the railroad. In March 2011, his position was eliminated and, despite applying for other jobs with Amtrak, he was told he did not have enough law enforcement experience, even though this had been his career for 45 years. He was fired in June 2011 after failing to secure another position at Amtrak. The agent then filed a whistleblower complaint with OSHA.
In its ruling, OSHA made it clear that Amtrak had retaliated against the agent for his actions as a whistleblower. In a statement, acting OSHA New England Administrator Jeffrey Erskine said, “In this case, an employee was terminated for pursuing and reporting safety concerns.” He went on to say that “The employer’s retaliation is unacceptable and illegal.”
The FRSA protects rail employees from retaliation when they bring issues of safety, health and security to supervisors. OSHA also takes a very dim view of railroads that retaliate against whistleblowers because, as Erskine noted in his statement, “When retaliation occurs, it can have a chilling effect on employees and create a climate of silence where employees’ fear to speak up masks conditions that could impact their health and well-being, and that of their customers.”
Railroads have a duty to ensure the safety of passengers as well as workers. When they either ignore warnings raised by whistleblowers or terminate them for doing so, everyone is at risk. In addition, whistleblowers play an extremely important role in maintaining safety standards and should be rewarded for their actions, not fired.
If you are a railroader who has been treated unfairly by your employer for bringing safety or other concerns to their attention, you may benefit from talking, in confidence, to an employment lawyer with experience handling railroad matters. Please do not hesitate to contact us today.
View all posts byArvin J. Pearlman
Arvin Pearlman is nationally recognized for his work on behalf of railroad workers who were injured or killed in the course of their employment. Since concentrating his practice on Federal Employers Liability Act (FELA) litigation in 1979, Arvin has tried countless personal injury cases before judges and juries across the United States.