Chain of Thought

Did Norfolk Southern Try to Silence a Warning Whistle?

A couple years ago, Norfolk Southern Railway Co. formally recognized a railroad conductor based out of its Harrisburg, Pa., terminal for excellent performance. They particularly liked his working 35 years without reporting an injury. That gratitude changed to attitude overnight—literally—after this conductor reported a head injury sustained after he blacked out and fell down steps while returning from the locomotive lavatory. Again, this incident happened the day after the railroad's recognition.

You might think that with this conductor's 35-year record of safety Norfolk Southern would find this injury unusual and might want to look into how it happened. So what did it do? It fired the person.

Oh, there was an investigative hearing—after which management officials found him guilty of falsifying a report of a work-related injury, failing to promptly report the injury, and making false and conflicting statements. That doesn't sound like something an employee with a 35-year history of exemplary safety would do, does it?

OSHA didn't think so either. In fact, after its own investigation, it decided this little kangaroo court was flawed, and that it lacked evidence that the conductor intended to misrepresent his injury. The result? OSHA ordered the railroad to pay the employee $175,000 in punitive damages, $76,623.27 in back wages plus interest and $17,993.43 in compensatory damages—as well as all fringe benefits.

Remember that old biblical phrase, “By his deeds shall a man be known?” Same goes for a railroad. Norfolk Southern is building a bit of a history of such deeds. In fact OSHA announced this particular one at the same time as two others in which the railroad railroaded some whistleblowing employees.

OSHA found that Norfolk Southern violated the whistleblower protection provisions of the Federal Railroad Safety Act in two other cases as well, resulting in a total payout of $802,168.70 in damages, including $525,000 in punitive damages and attorneys' fees to all three employees. OSHA also ordered the company to expunge the disciplinary records of the whistleblowers, post workplace notices regarding railroad employees' whistleblower protection rights and provide training to its employees about these rights.

"Firing workers for reporting an injury is not only illegal, it also endangers all workers,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “When workers are discouraged from reporting injuries, no investigation into the cause of an injury can occur. To prevent more injuries, railroad workers must be able to report an injury without fear of retaliation.”

OSHA has issued a reminder that 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. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA's Whistleblower Protection Program.

Under the terms of this program, all employers are required to display OSHA's revised job site poster which advises employees of their rights to file safety complaints, request OSHA inspections and make whistleblower claims. OSHA has also revised its safety courses to mandate more instruction on the exercise of employee rights in the workplace, including step-by-step instructions for filing an OSHA complaint.

Most recently, OSHA issued a Memorandum addressing employer safety incentive and disincentive policies, and how they might violate OSHA's retaliation protections. It lists the following scenarios where safety incentive and disincentive programs should be carefully scrutinized:

• Taking disciplinary action against employees who are injured on the job regardless of fault;

• Disciplining employees who report an injury or illness in an untimely manner where the reporting requirements or discipline are unduly harsh;

• Taking disciplinary action against employees injured as the result of safety rule violations where the reporting requirements or discipline are unreasonable or unduly harsh;

• Safety award programs that directly or indirectly provide employees with an incentive not to report injuries and illnesses, such as paying a bonus to a team of employees who work a set period of time without a reportable injury, or supervisory bonuses linked to lower injury rates.

I wonder if, before canning that complaining conductor, Norfolk Southern gave him any tokens beyond a certificate to remember the rewards of a good safety record—or at least of not being a snitch.

OSHA recommends that recognition not be tied to injury and illness reporting. Consider, instead, giving t-shirts to employees working on safety and health committees or throwing a party following the completion of safety and health training.

OSHA's scenarios governing whistleblower status have stirred some debate in the legal community. For example, attorneys with Sherman & Howard's Labor & Employment Law Department issued a newsletter stating that some of OSHA's scenarios do not reflect violations of the Whistleblower law. Offering safety incentives for reporting work-related injuries should not be discouraged, they believe.

“Safety incentives are designed to reward safe behaviors (or penalize unsafe behaviors) and have been part and parcel of many safety and heath programs for years,” they write. “OSHA's intrusion into policies best left to human resource management or collective bargaining is unwarranted and, in our view, there is no reason why an employer cannot fully protect and promote employee rights under the law while at the same time implementing effective safety incentive programs.”

The lawyers also note that OSHA's Memorandum is only informal guidance to its inspectors and investigators, not new legal requirements for employers. In fact, no court has ruled that safety incentive programs, standing alone, violate employee rights under the OSHA Act.

“In our view, the Memorandum reflects a new enforcement direction in support of OSHA's increased emphasis on whistleblower protection,” they conclude. “Several cases testing this novel theory of liability may be required before the dust settles.”

In the meantime, for the safety of your employees, not to mention that of your company's finances and image, make sure your safety and health program and your employee handbook or training materials clearly spell out the employee's obligation to report work-related injuries in a timely manner.

Working people should feel free to report injuries or illnesses without fear of retaliation or discrimination. And their employers must guarantee that right by providing a procedure to do so. It's the law and it's a good one indeed.

Related Editorial:

OSHA to Form Whistleblower Protection Committee

OSHA Gives Whistleblower Protection Higher Priority

OSHA Fines Union Pacific $615,000 for Retaliating against Whistleblowers

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