Whistleblower Protection

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2 Whistleblower Protection Transportation Industry STAA, AIR21, FRSA Anthony Rosa Assistant Regional Administrator Whistleblower Protection Program Atlanta Regional Office Not an Official DOL Publication 61 Forsyth Street SW Room 6T50 Atlanta, GA 30303

3 Agenda What s a Whistleblower? Brief History of OSHA Surface Transportation Assistant Act (STAA) Wendell H. Ford Aviation Investment and Reform Act for the 21 st Century (AIR21) National Transportation Safety and Security Act (NTSSA) Federal Railroad Safety Act (FRSA) A Whistleblower Complaint The OSHA Investigation Questions/Handouts/Resources

4 A whistleblower is an individual who reports alleged misconduct to people or entities that have the power to take corrective action. The term whistleblower derives from the practice of English bobbies who would blow their whistle when they noticed the commission of a crime. The blowing of the whistle would alert both law enforcement officers and the general public of danger. The term whistleblower is often used to mean the employee who alleges retaliation.

5 A Brief History of OSHA The Occupational Safety and Health Act of 1970 Occupational Safety and Health Administration Public Law Enacted December 29, 1970 Effective January 1971 Amended through January 1, 2004 Responsible for worker safety and health

6 OSHA s Mission Assure so far as possible every working man and woman in the nation safe and healthful working conditions. Without employees reporting safety/health hazards and/or work-related injuries & illnesses, many hazards may not be corrected, causing more harm.

7 A Brief History of OSHA Section 11(c) of the Act was the first whistleblower provision that OSHA was authorized to enforce Since then, OSHA has been given authority to enforce many additional whistleblower provisions found in various laws, including

8 Surface Transportation Assistance Act of 1982 (STAA). [49 U.S.C ] Provides protections for private sector drivers and other employees relating to the safety or security of commercial motor vehicles. Coverage includes all buses (for hire), hazardous material vehicle placarded and freight trucks with a gross vehicle weight of at least 10,001 pounds.

9 STAA protected activity includes: (B) the employee refuses to operate a vehicle because (i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security; or (ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's hazardous safety or security condition; (C) the employee accurately reports hours on duty pursuant to chapter 315;

10 Region IV s Recent STAA Merit Decisions: Zurla Trucking November 2010 United Auto Delivery March 2011 Heartland Transportation November 2011 Rowan Business Forms February 2012 Mark Alvis, Inc. May 2012

11 As of 7/9/12 Since October 2010: OSHA has issued 13 merit STAA cases Region IV has issued 5 merit STAA cases OSHA has settled 112 STAA cases Region IV has settled 37 STAA cases

12 Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21). [49 U.S.C ] Provides protections for employees of air carriers, their contractors and subcontractors.

13 Protected Activity under AIR21 includes: 1) provided, et. al., to the employer or Federal Government information relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States; (2) has filed, et. al., a proceeding relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States;

14 Region IV s Recent AIR21 Merit Case: Air Tran January 2012

15 As of 7/9/12 Since October 2010: OSHA has issued 1 merit AIR21 cases Region IV has issued 1 merit AIR21 cases OSHA has settled 17 AIR21 cases Region IV has settled 2 AIR21 cases

16 NationalTransit Systems Security Act (NTSSA). [6 U.S.C. 1142] Provides protections for employees of public transportation agencies, their contractors and subcontractors.

17 Federal Rail Safety Act (FRSA). [49 U.S.C ] Provides protections for employees of railroad carriers, their contractors and subcontractors.

18 As of 7/9/12 Since October 2010: OSHA has issued 27 merit FRSA cases Region IV has issued 4 merit FRSA cases OSHA has settled 72 FRSA cases Region IV has settled 17 FRSA cases

19 As of 7/9/12 Since FRSA was passed in 2007: OSHA has issued 45 merit FRSA cases Region IV has issued 4 merit FRSA cases OSHA has settled 104 FRSA cases Region IV has settled 18 FRSA cases Significant Settlements Amounts in some cases

20 Who Must Comply with the Whistleblower Provision of FRSA? Railroad Carrier Contractor of Subcontractor of Officer of Employee of

21 What Does FRSA Prohibit? Discharge Demotion Suspension Reprimand Any other negative action taken because employee was involved in activity protected by FRSA or was perceived by employer to involve or about to involve in protected activity Example change of work shift, reduction of hours

22 What Activity Is Protected Under FRSA? (1) Providing information or assisting in any investigation regarding conduct the employee reasonably believes constitutes: a violation of any Federal law/regulation relating to: railroad safety or security gross fraud, waste, or abuse of Federal grants or other public funds intended to be used for railroad safety or security If information provided to: Federal, State, or local regulatory/law enforcement agency Member of Congress person with supervisory authority over the employee

23 What Activity Is Protected Under FRSA? (2) Refusing to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security (3) Filing a complaint, or directly cause a proceeding related to railroad safety or security (4) Testifying in that proceeding related to railroad safety or security (5) Notifying or attempting to notify the railroad carrier or the Secretary of Transportation of a work-related personal injury or work-related illness of an employee

24 What Activity Is Protected Under FRSA? (6) Cooperating with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board; (7) Furnishing information to any Federal, State, or local regulatory or law enforcement agency relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with railroad transportation; or (8) Accurately reports hours on duty

25 A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment. If transportation to a hospital is requested by an employee who is injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care.

26 OSHA s current policy: Section (c)(1) is not a whistleblower provision because it prohibits certain conduct by railroad carriers and other covered persons irrespective of any protected activity by an employee. 29 CFR Part 1982; Supplementary Information.

27 OSHA s current policy: OSHA will not investigate a Sec.(c)(1) FRSA complaint as a whistleblower complaint OSHA will provide the employee with appeal rights per the Act OSHA will refer the alleged denial of prompt medical attention to the Federal Railroad Administration (FRA) or to an OSHA Area Office for possible inspection or other appropriate action

28 A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for: requesting medical or first aid treatment following orders or a treatment plan of a treating physician* except that a railroad carrier's refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section: if the refusal is pursuant to FRA medical standards for fitness of duty, or if there are no pertinent FRA standards, a carrier's medical standards for fitness for duty. *Even for a non-work related injury See Bala v. Path (2010-FRS-00026) Feb 10, 2012

29 Under this medical-related subsection, discipline means to: Bring charges against a person in a disciplinary proceeding, Suspend, Terminate, Place on probation, or Make note of reprimand on an employee's record.

30 1) Protected Activity - Employee was involved in activity protected by FRSA (Raised a safety concern, reported work-related injury) 2) Knowledge Decision-maker(s) knew about the protected activity: Someone who knows or suspects that the employee is the Whistleblower must influence the adverse decision. Knowledge can be inferred. 3) Adverse Action - Employee was retaliated against by the railroad (e.g., fired, disciplined, laid off)

31 4) Nexus - Employee s protected activity contributed to the unfavorable personnel action. Examples: Timing Close Temporal Proximity - Protected activity happens first, quickly followed by adverse action Animus Evidence of ill-will by the employer related to the protected activity Disparate Treatment Other employees under same circumstances as complainant treated differently Ex. Recent Norfolk Southern Railway case

32 After receiving a FRSA whistleblower complaint: OSHA notifies the employee, the railroad, and the FRA, that a whistleblower complaint was filed; OSHA does not represent any party and acts as a neutral fact-finder; Both parties are given opportunities to provide information and evidence; The parties are encouraged to resolve the matter early in the investigation (including mediation).

33 A typical investigation includes: A written response from the employer; Interviews Interviews with non-management witnesses may be confidential Recent issue with BNSF OSHA obtains relevant documents.

34 If a preponderance of the evidence shows that the protected activity was a contributing factor in the adverse decision, then The Railroad must provide clear and convincing evidence that it would have made the same adverse decision even if the whistleblower did not report an injury or a safety hazard, etc

35 No Merit: OSHA issues written Secretary s Findings dismissing the complaint Merit: OSHA attempts to settle the complaint with the parties; If no settlement, OSHA issues: Secretary s Findings Preliminary Order (Reinstatement, Back Pay, Notice to Employees, Other Damages) Appeal: The Secretary s Findings include information about how to appeal OSHA s determination: Office of the Administrative Law Judge De Novo Review Any preliminary order is NOT appealable to the ALJ

36 NOTICE TO EMPLOYEES PURSUANT TO A SETTLEMENT AGREEMENT or PRELIMINARY ORDER APPROVED BY U.S. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, THE EMPLOYER AGREES: In Re the Matter of: [RESPONDENT/COMPLAINANT/CASE #] THE EMPLOYER AGREES THAT IT WILL NOT DISCHARGE OR IN ANY MANNER DISCRIMINATE AGAINST ANY EMPLOYEE BECAUSE SUCH EMPLOYEE HAS FILED ANY COMPLAINT, OR HAS REPORTED A WORK-RELATED PERSONAL INJURY OR ILLNESS, OR INSTITUTED OR CAUSED TO BE INSTITUTED ANY PROCEEDING UNDER OR RELATED TO THE EMPLOYEE PROTECTION PROVISIONS OF THE FEDERAL RAILROAD SAFEETY ACT (FRSA), OR HAS TESTIFIED OR IS ABOUT TO TESTIFY IN ANY PROCEEDING OR BECAUSE OF THE EXERCISE BY SUCH EMPLOYEE ON BEHALF OF HIMSELF, HERSELF OR OTHERS OF ANY RIGHT AFFORDED BY THIS ACT. THE EMPLOYER AGREES THAT IT WILL NOT ADVISE EMPLOYEES AGAINST EXERCISING RIGHTS GUARANTEED UNDER THE FRSA, SUCH AS REPORTING WORK-RELATED INJURIES, CONTACTING, SPEAKING WITH, OR COOPERATING WITH OFFICIALS FROM THE U.S. FEDERAL RAILROAD ADMINISTRATION (FRA) AND/OR FROM THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA) IN THE COURSE OF AN INSPECTION OR AN INVESTIGATION. THE EMPLOYER AGREES THAT IT WILL NOT INTIMIDATE EMPLOYEES BY SUGGESTING OR THREATENING THAT EMPLOYEE CONTACT, CONVERSATION, OR COOPERATION WITH OSHA OR FRA OFFICIALS, OR FILING AN INJURY REPORT, MIGHT RESULT IN JOB LOSS, CLOSURE OF THE EMPLOYER S FACILITIES, IN LOSS OF EMPLOYMENT FOR THE EMPLOYEES, OR IN CIVIL LEGAL ACTION BEING TAKEN AGAINST THE EMPLOYEES. [Insert Co/Employer Name here], Inc. Date THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY OTHER MATERIAL. ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE APPROVING OFFICIAL.

37 OSHA must approve settlement agreements & withdrawals of any and all complaints; OSHA must approve PRIVATE (third-party) settlement agreements even if OSHA is not a party OSHA will not approve a provision that implies OSHA or DOL is party to a confidentiality agreement; OSHA will not approve a gag order stopping the employee from talking to the Government; OSHA may approve a waiver of future employment under certain conditions

38 Norfolk Southern Railway Company Five employees plus manager working on bridge. Manager was on the wrong side of the track. Complainant and co-worker were walking to their car on the pocket track. One other worker was operating the backhoe. The two other workers were operating the gang truck. Complainant s co-worker had enough time to jump off the pocket track before being hit by gang truck. Complainant was hit by the gang truck.

39 Manager was never charged. Norfolk Southern Railway Company The five employees were initially charged. The three truck operators were exonerated. Complainant s co-worker signed a waiver in lieu of suspension. Complainant was the only person charged. Complainant was the only person that underwent an investigative hearing. Complainant was the only person injured AND reported it! Complainant was the only person that suffered an adverse action and it was termination!

40 OSHA News Release: ATL June 18, 2012 Norfolk Southern Railway Co. ordered by US Labor Department's OSHA to pay more than $800,000 after terminating injured workers Investigation found violations of Federal Railroad Safety Act whistleblower provisions WASHINGTON The U.S. Department of Labor's Occupational Safety and Health Administration has found that Norfolk Southern Railway Co. violated the whistleblower protection provisions of the Federal Railroad Safety Act and consequently has ordered the company to pay three whistleblowers $802, in damages, including $525,000 in punitive damages and attorneys' fees. Additionally, the company has been ordered to expunge the disciplinary records of the whistleblowers, post workplace notices regarding railroad employees' whistleblower protection rights and provide training to its employees about these rights. A laborer based in Greenville, S.C., was terminated on Aug. 14, 2009, after reporting an injury as a result of being hit by the company's gang truck. The railroad charged the employee, a laborer, with improper performance of duties. OSHA found that the employee was treated disparately in comparison to four other employees involved in the incident. The laborer was the only employee injured and, thus, the only employee who reported an injury. He also was the only employee terminated. OSHA has ordered the railroad to pay punitive damages of $200,000 as well as compensatory damages of $110,852 and attorney's fees of $14,325.

41 Region 4 News Release: ATL Aug. 9, 2011 Norfolk Southern Railway Co. ordered by US Labor Department's OSHA to pay more than $122,000 for violating Federal Railroad Safety Act Whistleblower to receive compensatory and punitive damages, attorney's fees GREENSBORO, N.C. Norfolk Southern Railway Co. has been ordered by the U.S. Department of Labor's Occupational Safety and Health Administration to pay a former employee $122,199 in compensatory and punitive damages as well as reasonable attorney's fees. The company violated the employee's rights under the whistleblower provisions of the Federal Railroad Safety Act by terminating the employee for reporting an on-the-job injury in On May 13, 2009, the employee was initially injured in Jamestown, N.C., while removing a spike from the rail line. Fearing loss of employment, the worker did not report the injury until a re-injury occurred in October when, at the suggestion of management, the employee saw a doctor. After returning to work, the employee was suspended and later terminated for allegedly falsifying the injury. The employee submitted a complaint to OSHA and the agency's investigation determined that not only were the employee's rights under the FRSA violated, the company also successfully intimidated other employees from reporting on-the-job injuries. This "chilling effect" allowed Norfolk Southern to maintain the appearance of an exemplary safety record and continue its 22- consecutive-year record as recipient of the E.H.Harriman Gold Medal Rail Safety Award.

42 Complaints can be filed orally or in writing. FRSA, NTSSA and STAA Whistleblower complaints must be filed within 180 days of the date you first learn that the adverse decision has been made. AIR21 complaints must be filed with 90 days. Call OSHA s Atlanta Regional Office at: See OSHA s webpage at:

43 OSHA needs the following information: Contact information for the employee & railroad The date the adverse decision was made and communicated to the employee The FRSA protected activity that the employee believes contributed to the retaliation How the railroad knows about the employee s work-related injury or rail-safety concern Why was the employee retaliated against?

44 FRSA prohibits employees from filing multiple complaints under other laws If the other discrimination complaint is based on the same issues and allegations and the other statute offers the same relief. OSHA asks that the employee choose under which law to file the complaint Filing a union grievance is not an election of remedies - See ARB Decision re: Mercier & Koger 9/29/11

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47 Anthony Rosa Wanda Posey Assistant Regional Administrator Investigative Assistant Whistleblower Investigators Tampa Gloria Colon Tampa Antione Robinson Tampa Butch Scarcliff Fort Lauderdale Evelyn Perez-Vargas Fort Lauderdale Clarence Kugler Fort Lauderdale Gilbert Feliciano Jacksonville John Waler Nashville Lauren Fehlman Birmingham Vanessa Burkhead Mobile Michael Taylor Jackson Matthew Robinson Savannah Dale Boyd Atlanta-East Christine Schulz Atlanta-East Donna Andrews Atlanta-West Linda Creecy Raleigh Bill Peterson Columbia Angel Rosado

48 OSHA s Investigative Staff is available for consultation and troubleshooting. If you have a question, feel free to call us. We accept anonymous calls, but cannot give advice about an ongoing investigation.

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