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For second time in a month, OSHA finds Metro-North retaliated against employee who reported workplace injury

(Source: Department of Labor press release, April 3, 2012)

NEW YORK — An investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration has determined that Metro-North Commuter Railroad Co. violated the employee protection provisions of the Federal Railroad Safety Act when it took retaliatory action against an employee at its Harmon Diesel Shop in Croton-on-Hudson who reported a workplace injury. This finding represents the second time in a month that OSHA has determined the railroad, which provides commuter rail service in Connecticut, New York and New Jersey, forced an employee to work in violation of medical instructions.

In this case, a machinist injured his finger on July 6, 2009, and reported it to management. The hospital that treated the injury instructed the machinist not to work that day or the next. However, the railroad’s occupational health service determined that the employee was qualified for restricted duty despite the hospital’s orders. The employee was then instructed to serve as fire watch while a fuel tank was being welded inside a locomotive, a duty normally carried out by a qualified member of the fire brigade. The worker was threatened with suspension for raising concerns that he was not qualified or medically fit to perform this duty. Subsequently, the employee was excused from work for more than a week by his personal physician. After returning to full duty status, no work was assigned to the employee, and he was issued a written reprimand saying that he caused his injury.

“Metro-North has exhibited an unacceptable pattern of penalizing workers who report injuries, interfering with their medical treatment and forcing them to work in violation of medical instruction,” said Robert Kulick, OSHA’s regional administrator in New York. “The whistleblower provisions of the Federal Railroad Safety Act were designed to prevent such behavior toward workers. We will continue to order corrective action whenever we identify this type of discrimination and intimidation.”

OSHA has ordered Metro-North to pay $30,000 in punitive damages to the worker and $13,510 in attorney’s fees. Additionally, Metro-North must expunge any references to disciplinary actions and counseling sessions relating to the employee and his injury, and inform its human resources department that the injury and resulting absences are excused absences that may not be counted against the employee in any evaluations or in any applications for craft transfers and/or promotions. Finally, Metro-North must post an OSHA notice for employees in the Harmon Diesel Shop and on its internal website, and provide all diesel shop employees with information on employee protections for reporting work-related injuries.

Metro-North and the complainant each have 30 days from receipt of the findings to file an appeal with the Labor Department’s Office of Administrative Law Judges. Under the FRSA, employees of a railroad carrier and its contractors and subcontractors are protected against retaliation for reporting on-the-job injuries, reporting certain safety and security violations, and cooperating with investigations by OSHA and other regulatory agencies.
On March 8, OSHA found that Metro-North retaliated against another employee at the Harmon Diesel Shop who reported an injury, interfered with his medical treatment and forced him to work in violation of his physician’s orders. In that case, OSHA ordered the railroad to pay $10,000 in punitive damages and $8,830 in attorney’s fees, and take other corrective actions. The news release can be viewed at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=21966.

OSHA enforces the whistleblower provisions of the FRSA and 20 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, maritime and securities laws.

Under these laws 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. Detailed employee rights information is available online at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Editor’s note: The Labor Department does not release names of employees involved in whistleblower complaints.

Tuesday, April 10, 2012

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