CSX Transportation has received an order from the federal Occupational Safety and Health Administration to pay a former dispatcher and trackman a total of $100,000 in compensatory and punitive damages for violating his whistleblower rights under the Federal Railroad Safety Act, or FRSA.
Fourth-fifths, or fully $80,000, of the award represents punishment against the rail corporation for inflicting emotional distress on the employee who, since an October 2009 near-miss accident involving two incorrectly routed trains, has been fired as a dispatcher, rehired for a single day as a track maintenance man, fired again, and, ultimately rehired permanently as a trackman. The full details of the investigation into the case and the agency’s findings appear in this OSHA notice to CSX.
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I was alerted to this case and the record award for emotional distress by my fellow railroad injury attorney Charlie Goetsch. I cannot agree strongly enough with his analysis that the award represents OSHA’s commitment to protecting rail workers who file FRSA complaints. Typical emotional distress findings result in awards like the $3,500 received by a Union Pacific worker in Idaho in March 2012.
The former dispatcher originally lost his job after participating in a Federal Railroad Administration investigation into the near-miss. He later filed a FRSA claim, alleging CSX had illegally retaliated against him for sharing information with FRA. It’s essential to keep in mind here that FRSA makes it a crime to take any adverse employment action against any employee who reports an accident or safety risk. That is, FRSA protects whistleblowers in the rail industry.
Before that case could even properly begin, CSX granted his petition for reinstatement to a different position. As soon as the company’s personnel director learned of the man’s FRSA filing, however, he ordered a second firing. OSHA received a second FRSA complaint and found that such “outrageous behavior and callous disregard for the rights of its employees warrants punitive damages. CSX’s conduct in retaliation against an employee for filing a FRSA complaint with OSHA exhibited reckless disregard for the law and complete indifference to [his] rights and the rights of CSX’s other employees.”
The man’s union, The Brotherhood of Maintenance of Way Employees, helped him secure full reinstatement with back pay.
As an attorney based in Virginia (VA) who has helped dozens of rail employees injured on the job for Amtrak, CSX, Norfolk Southern and other railroads, I know how important it is for rail workers to be able to report unsafe working conditions, occupational illnesses and accidents without having to fear being fired, demoted or reassigned. I applaud OSHA for its good work in protecting employees.