A federal court has ordered Burlington Northern Santa Fe Railway (BNSF) to pay a whistleblower $1.74 million for illegally firing him after he reported hazardous rail defects.
The Occupational Safety and Health Administration (OSHA) said In a Feb. 5 statement that the whistleblower, a former BNSF employee in Denver identified in other sources as Brandon Fresquez, will receive $696,173 in back wages and future lost wages.
The court also ordered the railroad to pay Mr. Fresquez $800,000 in damages for emotional distress and an additional $250,000 in punitive damages, the maximum allowable under U.S. law.
OSHA investigated Mr. Fresquez’s retaliation complaint and determined that BNSF violated the whistleblower protection provisions of the Federal Railroad Safety Act (FRSA) when it terminated him for reporting track defects.
The FRSA prohibits railroad companies from discharging, demoting, suspending, reprimanding, or in any other way punishing an employee who lawfully provides information to proper internal or external channels about issues related to railroad safety or security, fraud, waste, or abuse of federal funds.
OSHA issued a preliminary order with the appropriate relief afforded by the FRSA’s whistleblower statute and appealed it to the U.S. District Court for the District of Colorado.
“Railroad employers and owners must comply with the Federal Railway Safety Act, enacted to protect railroad workers who report hazardous safety or security conditions,” said OSHA Acting Regional Administrator Rita Lucero, in Denver, Colorado.
Worker advocates say law needs more teeth
BNSF and other railroad companies have a long history of retaliating against employees who report safety issues or simply become injured on the job. Justice for railroad whistleblowers has prompted lawyers and some government officials to push for higher penalties and criminal charges for railroads and executives who flout the law.
Currently, OSHA can assess a maximum fine of $250,000 against railroads, and “no jail time for company managers who break job safety rules and laws, or order workers to do so,” according to People’s World.
Critics say the low penalties are hardly a deterrent to railroads, which continue to lash out against workers who stand up for safety.
“There needs to be damages, and criminal action against criminal behavior,” by company officials, a Brotherhood of Locomotive Engineers-Teamsters member testified in a 2016 railroad whistleblower retaliation case.
The railroad employees told People’s World that boosting the maximum fines to $5 million would be a good place to start. “They understand that kind of take,” one railroad employee said.
In February 2019 a federal appeals court upheld a $1.25 million award to a BNSF Railway whistleblower who was terminated for reporting safety violations.
In May 2016, a federal jury in Seattle awarded another BNSF worker more than $1.6 million. That worker alleged BNSF fired him for refusing orders to forego a critical brake test on a train hauling oil and hazardous materials.
Workplace retaliation lawyers
Retaliation may occur in the workplace when an employer punishes an employee for an action that is permitted by law, but which the employer wants to discourage. For example, an employer may retaliate against an employee who makes harassment or discrimination complaints, who reports fraud or other wrongdoing in the workplace, or who participates in an investigation within the workplace. Some employers also retaliate against employees who report workplace injuries to state or federal authorities.
Lawyers in our Fraud section handle complaints involving employment law, including retaliation. For more information or to discuss a possible claim, contact Larry Golston, Leon Hampton or Lauren Miles in this section.