Whistleblower Retaliation Continues at Union Pacific Railroad

The Occupational Safety and Health Administration (“OSHA”) of the U.S. Department of Labor (“DOL”) has – for the fourth time in less than a year – ordered Omaha, Nebraska’s Union Pacific Railroad Co. to pay an employee damages for retaliation in violation of the Federal Railroad Safety Act (“FRSA”).  The FRSA protects employees who report violations of any federal law, rule or regulation relating to railroad safety or security.  The statute also prohibits employers from retaliating against employees for notifying their company or the Department of Transportation of a work-related injury or illness.  As in the other cases, an OSHA investigation determined that Union Pacific violated this provision of the Act.

An OSHA press release reported that on July 8, 2011, a Union Pacific employee lost two teeth and suffered several facial lacerations when coupled rail cars came apart and struck him while he was working as a switchman in the railroad’s Topeka, Kansas yard.  After the worker reported the injury, Union Pacific to issued him a 10-day unpaid suspension.  An OSHA investigation determined that the suspension came in retaliation for reporting the injury that occurred, that the suspension was issued even though the evidence showed that the employee was not at fault, and that employees involved in similar incidents – but who had not been injured – received lesser forms of discipline or were allowed to bypass the formal discipline process entirely.

OSHA ordered Union Pacific to pay the worker, who retained his position at Union Pacific despite the suspension, roughly $38,500 in damages for its retaliation.  In addition, Union Pacific has been ordered to remove references to discipline from the employee’s personnel record and to post employee whistleblower rights information throughout its Kansas City Service Unit.

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