Last summer OSHA told BNSF to stop using its "points policy" to try to intimidate employees out of reporting on-duty personal injuries. The Federal Railroad Safety Act of 2007 prohibits railroads from retaliating against employees who report on-duty injuries. "Retaliating" includes discharge and other types of adverse employment action. This statute also protects employees who try to accurately report their hours of service, or who report unsafe track or unsafe equipment, or who refuse in good faith to work on unsafe track or equipment. Congress gave OSHA, rather than the Federal Railroad Administration, jurisdiction over such claims because OSHA already had substantial experience investigating and deciding similar retaliation claims in other industries. If successful, the employee may be entitled to reinstatement with retroactive seniority, back pay with interest, punitive damages, and costs and attorney's fees.
In the 2011 OSHA decision the employee, a BNSF conductor in Seattle, suffered a knee injury when she had to jump from a moving cut of cars to avoid an impending collision. A trainmaster responded to the injury scene. The trainmaster called 911 and the terminal manager. The terminal manager arrived at about the same time as the ambulance. The trainmaster and terminal manager followed the ambulance to the hospital. Upon arrival, these BNSF officials repeatedly tried to enter the employee's treatment room and were so persistent about this that hospital staff had to summon a security guard who had to order the officials to leave. The terminal manager distributed an e-mail to various other officials that same day describing the basic facts of the injury. The employee then filled out a written BNSF injury report on the day following the injury.
Despite its responsible officials knowing enough about the injury to follow the employee to the hospital where they were so disruptive that they had to be ejected by security, and despite knowing enough about the injury to circulate an email about it the day it happened, BNSF noticed the employee up for disciplinary investigation for alleged late reporting. Following an investigative hearing, BNSF suspended the employee for 30 days without pay. This suspension potentially qualified as a "serious incident" and placed the employee at risk of discharge if she had a second such "serious incident" within 5 years.
BNSF then disregarded the findings of the employee's treating physician who had released her to return to work. BNSF claimed to be dissatisfied with various aspects of the medical records and managed to delay the employee's return to full duty by about eight months.
Under BNSF's Personal Performance Index Point Distribution policy, a "reportable" on-duty injury is worth 40 points (injuries are "reportable" if they meet federal criteria that specify which injuries must be reported to the Federal Railroad Administration). A non-reportable injury is only worth 5 points. It does not matter whether the employee is entirely blameless in the way the injury occurred. An employee who receives 40 of these "points" is placed into BNSF's Employee Review Program (ERP) for a period of several months. While in the program, the employee is subject to increased management scrutiny in the form of more frequent operations tests, failure of which results in the assignment of even more "points." Employees in the ERP are also ineligible for craft transfer.
OSHA's decision in this case recounts its ongoing concern with BNSF's points policy. As early as October of 2007, a Congressional committee had considered this policy and found that it "often" placed employees who reported personal injuries "in disciplinary jeopardy." During the course of OSHA's investigation and decision of the Seattle case, it repeatedly warned BNSF that this policy probably violated the Federal Rail Safety Act's anti-retaliation provisions. Though BNSF had initially told Congressional staff in 2007 that it would "re-evaluate" this policy, it steadfastly denied to OSHA that the policy was or might be illegally retaliatory.
OSHA ultimately ruled in favor of the employee. It ordered BNSF to pay her back wages; mental pain and suffering damages in the amount of $125,000; and punitive damages in the amount of $150,000. It ordered BNSF to expunge the suspension and the 40 points from the employee's record. It ordered BNSF to pay the employee's attorney's fees in the amount of $22,917.50.
And finally, OSHA ordered BNSF to post a prescribed written Notice "to all its employees." The OSHA-ordered Notice to Employees was supposed to state that BNSF
agrees that it will not use its "points policy," as related to injured employees who exercise their rights under the Act, in a retaliatory manner such that it creates a "chilling effect" and dissuades an injured employee from reporting the work-related injury.
Have you seen this notice? We have never heard from anyone who has seen a copy of it in any terminal or BNSF workplace in Montana or Wyoming.