Rail Workers Win 'Genuine' Whistleblower Protection from FEDS, BMWED says

After months of discussions with the U.S. Occupational Safety and Health Administration (OSHA), the Brotherhood of Maintenance of Way Employes Division (BMWED) has helped obtain “strong” whistleblower protection for its members and “all railroad workers nationwide,” according to the union.

In 2007, a Federal Rail Safety Act amendment transferred authority for rail carrier whistleblower protections to OSHA. The law provides rail workers with rights and remedies against “unlawful carrier retaliation for reporting injuries, and violations of federal laws and regulations related to railroad safety and security,” according to BMWED. The law also protects rail workers from retaliation for reporting “hazardous” safety or security conditions, refusing to work under certain conditions, or refusing to authorize the use of any safety- or security-related equipment, track or structure.

“Since the whistleblower law went into effect, rail carriers have routinely raised a facile defense to … whistleblower complaints, falsely claiming that a rail employee’s grievance filed under the terms of the collective bargaining agreement became an ‘election of remedies’ barring the filing of a complaint under [the law],” BMWED officials said in a prepared statement.

OSHA initially adopted a policy that “forced rail workers to forfeit their contractual rights” to pursue a whistleblower complaint, they said. Now, OSHA has reversed its policy, “effectively opening the door to genuine whistleblower protection for railroad workers as Congress intended,” according to BMWED.

Whistleblower complaints must be filed within 180 days after an employee reports retaliatory action. Railroads found to have violated a rail worker’s rights under the law might be ordered by OSHA to reinstate a dismissed employee, provide back pay, restore seniority and benefits, or provide other relief. In addition, violators might pay punitive damages of $250,000 or less.

“Railroads will no longer be able to retaliate against railroad employees who report injuries and safety violations with impunity,” said BMWED President Freddie Simpson.

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