Our firm has discussed several troubling episodes recently involving railroad companies that have used on-the-job injuries as an excuse to punish and even fire workers. Thankfully, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has caught on to the companies’ misbehavior and has handed down several major rulings against railroad companies like Union Pacific in only the last few months.
Another case that occurred at the end of January is worth mentioning because, rather than just hand down another whopper of a fine, OSHA actually signed an agreement with BNSF Railway Co. about the inappropriate way it had been retaliating against workers whose only crime was suffering a workplace accident.
OSHA announced that BNSF had agreed to revise several of its policies governing personnel after the Department of Labor found that they violated clear provisions contained in the Federal Railroad Safety Act (FRSA) that are meant to protect whistleblowers. OSHA said the policies acted to dissuade workers from reporting workplace injuries and thus left other employees in danger of suffering similar harm.
The agreement that BNSF signed says that the company will change its polices so that previous workplace injuries do not play a role in deciding how long an employee is suspended in the event of a rule violation. OSHA found that the company was inappropriately using past work injuries as an excuse to unfairly keep workers off the job. BNSF admitted to having a system that assigned points to those workers who suffered injuries and keeping track of those rankings.
BNSF also agreed to strengthen internal systems to allow for an immediate review of any management decision to discipline an employee who suffered an on-the-job injury. Finally, BNSF said it would make settlement offers to 36 different employees who had filed whistleblower complaints against the company claiming that they had been unfairly retaliated against for suffering or reporting workplace accidents.
OSHA said that protecting injured railroad workers from retaliation is one of the agency’s central missions. The hope among many is that the latest episode with BNSF, as well as the major fines handed down to Union Pacific, will work to force the railroad companies to make much needed changes in how they approach injured workers. No employee should have to fear being harassed, intimidated or even fired for being hurt while on the job. It’s good to know OSHA is at least attempting to hold the railroad companies’ feet to the fire.
About the Editors: The Shapiro, Lewis & Appleton & Favaloro personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard and Northeast North Carolina Injuryboard as pro bono services.
Rick Shapiro has practiced personal injury law for over 30 years in Virginia, North Carolina, and throughout the Southeastern United States. He is a Board-Certified Civil Trial Advocate by the National Board of Trial Advocacy (ABA Accredited) and has litigated injury cases throughout the eastern United States, including wrongful death, trucking, faulty products, railroad, and medical negligence claims. During his three-decade career, Shapiro has won client appeals before the VA Supreme Court, VA Court of Appeals, NC Supreme Court, SC Supreme Court, WV Supreme Court, TN Supreme Court, and three times before the United States Court of Appeals for the Fourth Circuit, underscoring Shapiro’s trial achievements. In addition, he and his law firm have won settlements/verdicts in excess of $100 million. His success in and out of the courtroom is a big reason why he was named 2019 “Lawyer of the Year” in railroad law in U.S. News & World Report's Best Lawyers publication (Norfolk, VA area), and he has been named a “Best Lawyer” and “Super Lawyer” by those peer-reviewed organizations for multiple years. Rick was also named a “Leader in the Law, Class of 2022” by Virginia Lawyers Weekly (total of 33 statewide honorees consisting of lawyers and judges across Virginia). And in September 2023, Rick was selected as a recipient of the National Board of Trial Advocacy (NBTA) 2023 President’s Award. Although many nominations were submitted from across the country, Rick was just one of eight attorneys chosen by the prestigious National Board which certifies civil trial attorneys across the U.S. Rick was also recently named to Virginia Lawyers Weekly 2024 Virginia’s Go To Lawyers Medical Malpractice. The attorneys awarded this honor are nominated by their colleagues and chosen by a panel from the publication.
2 Comments
Kevin M Shelton
Non-admission of Liability
It is understood and agreed that this Accord does not in any manner constitute an Admission of liability or wrongdoing on BNSF's part. BNSF expressly denies any such liability or wrongdoing and enters into this Accord in compromise and voluntary resolution of disputed claims for the sole purpose of avoiding further litigation and expense.
This Accord is strictly between BNSF and OSHA.
In other words, for the uninformed, it is a pass for BNSF. A 'Continue business as usual' and nothing more. It is a crock of 5417. God help the morons that accept it. (Odd. This Comments block will not notify me unless it's blank...hmm)
Kevin M Shelton
On a lighter note, myself and one other individual have been able to reach the ALJ level for at least two of our brethren; DOL for one other. Some law firms seem to not want to become involved until that level. How very sad. It is not as hard as it appears though. Patience is a virtue. And perseverance is a twelve letter word. For most.
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