OSHA announced today that it has reached a settlement agreement with BNSF that requires BNSF to eliminate several policies that had placed employees who reported on-duty injuries under increased management scrutiny. The terms of the settlement require BNSF to eliminate the PPI ("Personal Perfomance Index") and significantly revise the ERP ("Employee Review Program") and PEPA ("Policy for Employee Performance Accountability") policies. Our firm represented one of the railroaders who challenged the continued existence of these BNSF policies.
The Federal Railroad Safety Act of 2007 prohibits railroads from retaliating against employees who report on-duty injuries. "Retaliating" includes discharge and also other types of adverse employment action like suspensions, harassment, unusually frequent operations testing, and/or increased management scrutiny. 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.