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OSHA: Amtrak whistleblower gets job back, awarded $892,551

January 20, 2017 GMT

A longtime Amtrak employee who lost their job after raising concerns about railroad safety, fraud and abuse involving an railroad contractor, has not only been reinstated, but awarded a $892,551 settlement.

The order to Amtrak came from the U.S. Department of Labor’s Occupational Safety and Health Administration.

According to an OSHA statement in announcing the decision, “In early to mid-2010, the agent was investigating an Amtrak contractor that had been convicted in a New York state court for fraud in examining and testing concrete at building projects in the New York City area. This Amtrak contractor had performed testing on certain Amtrak tunnel projects. Strongly believing it was necessary for safety and security reasons, the agent raised safety concerns regarding work performed by this contractor on Amtrak projects.

“Then, in October 2010, the agent gave Amtrak’s Dispute Resolution Office information and provided support for a fellow employee who had received a letter of reprimand after he raised safety concerns in a separate matter. The following month, the agent received his first-ever negative performance review. In March 2011, Amtrak notified him that - as a part of an overall reorganization - his position was being eliminated. In the course of the next few months, the agent applied for other positions, but was told that he lacked the required law enforcement training, despite a 40-year law enforcement career that included equivalent training. In June 2011, Amtrak notified the agent that he would be terminated due to his not being placed in a new position.”

The terminated agent later filed a whistleblower complaint with OSHA. The federal agency did not identify the Amtrak employee, saying it’s against OSHA policy to name whistleblowers.

After concluding its investigation, the agency determined that the complainant engaged in protected Federal Railroad Safety Act activities when he raised concerns about safety issues related to work conducted by the Amtrak contractor and when he expressed his support of his fellow agent’s safety complaints.

OSHA also found these protected activities contributed as factors in his termination by Amtrak.

Jeffrey Erskine, OSHA’s acting New England regional administrator, said in a statement, “In this case, an employee was terminated for pursuing and reporting safety concerns. The employer’s retaliation is unacceptable and illegal. Federal law gives rail carrier employees the right to raise safety, health and security concerns with their supervisors without fear of retaliation. When retaliation occurs, it can have a chilling effect on employees and create a climate of silence where employees’ fear to speak up masks conditions that could impact their health and well-being, and that of their customers.”

OSHA has issued a notice of findings to Amtrak ordering it to take the following corrective actions:

Reinstate the employee to his former or a similar position with all rights, seniority and benefits he would have received had he not been discharged.

Pay him a total of $892,551, which is comprised of $723,332 in back wages plus $34,218 in interest; $100,000 in punitive damages; $35,000 in compensatory damages; plus reasonable attorney’s fees and costs.

Expunge from Amtrak’s records all references related to his discharge and exercise of his FRSA rights; make no adverse statements concerning his employment at Amtrak; and not retaliate or discriminate against him in any manner.

Post a notice to all railroad employees about their FRSA rights.

The employee and Amtrak each have 30 days from receipt of OSHA’s findings to file objections and request a hearing before the Labor Department’s Office of Administrative Law Judges.