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Proskauer Whistleblower Defense

BNSF & OSHA Reach Significant Whistleblower-Related Accord

Posted in OSHA Administration

In January 2013, after over 30 FRSA complaints were lodged by BNSF Railway Company (BNSF) employees, OSHA and BNSF reached an agreement (Accord), where BNSF agreed to modify certain policies and practices alleged to interfere with employees’ rights under the whistleblowing provisions of the Federal Railroad Safety Act (FRSA). BNSF also extended settlement offers to 36 employees who alleged retaliation.

The Accord

BNSF agreed to make changes to three policies alleged to interfere with employees’ FRSA rights: the Policy for Employee Performance Accountability (PEPA); the Personal Performance Index (PPI); and the Employee Review Process (ERP).

  1. BNSF eliminated the consideration of whether an employee had been injury-free during the 5- year period prior to his first serious rule violation when deciding the length of the employee review or probationary period for such a violation. Also, prior to the Accord, BNSF placed a 36-month review or probationary period on employees who sustained on-duty personal injuries in the preceding 5 years. BNSF also agreed to shorten the review period to 12 months, and to notify all employees previously subject to the 36-month review period that the period had now been reduced to 12-months.
  2. BNSF overhauled its ERP policies. It eliminated its PPI system, whereby an employee’s potential selection for an ERP was in part determined by points accrued as a result of certain on-the-job injuries. After a brief moratorium on employee enrollment in ERP’s altogether, BNSF began a modified program in early 2013. However, under the rules of the new program, on-the-job injuries no longer could be a factor in an employee’s selection for an ERP, and all employees would be notified, in writing, of the reasons for their selection for the ERP. As part of the overhauled ERP process, BNSF identified 4 new criteria to determine whether an employee should be enrolled in an ERP: (i) human factor rail equipment incident; (ii) critical operations testing failure; (iii) 3 non-critical operations testing failures in a 12-month period; and (4) discipline event (this includes attendance, if there are 2 or more attendance events). The Accord had the effect of eliminating all consideration of on-the-job injuries or reporting of safety concerns as a basis for an employee being enrolled in an ERP.
  3. BNSF beefed up its management review process for incidents involving on-duty injuries. Pursuant to the terms of the accord, BNSF would engage in a heightened review of any incidents in which an employee reports an on-duty injury, but is also subject to discipline for the very same incident causing the injury. The review process, involving a consultation with both a high-level BNSF manager and an attorney from the BNSF law department, would now also occur prior to any discipline being imposed on an employee.
  4. The Accord provides for widespread communication of the changes to BNSF policies, and the implementation of a training program focused on the anti-retaliation requirements of the FRSA.

Implications

The Accord reflects the seriousness with which OSHA is taking whistleblower claims, and the lessons from the Accord apply in many respects to each of the 22 whistleblower statutes within OSHA’s purview. Employers are well advised to review their policies, protocols and procedures to ensure they are not reasonably construed as discouraging reporting of injuries or violations of rules and regulations. Likewise, performance review policies that take into account the reporting of injuries or potential regulatory violations should be carefully reviewed with the same goal in mind.