Appeals court upholds whistle-blower’s award

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in Employment Law,Human Resources

Federal appeals courts are becoming more sympathetic to employees who report workplace dangers. The 3rd Circuit Court of Appeals has backed a plaintiff who says he suffered retaliation for claiming he was traumatized by a workplace accident.

Recent case: Anthony, a railroad employee, was responsible for the safety of contracted workers who helped repair rail lines. One day, he witnessed an accident in which a contractor was electrocuted when someone failed to turn off the power at the repair site.

An initial investigation apparently concluded that Anthony wasn’t culpable for the accident, since he was not required to take a drug test. (Federal rules require railroads to administer drug tests whenever there is reasonable suspicion that an employee violated safety rules that caused an injury.)

A day after the investigation ended, Anthony reported to his supervisors that he was greatly distressed by what he saw and wanted psychological help from the railroad’s employee assistance program. Only then was Anthony suspended, for allegedly breaking safety rules.

The lost income while he was suspended damaged his credit score and he wound up losing his home to foreclosure. The Department of Labor—working with OSHA— eventually ordered the railroad to pay Anthony over $500,000 under the Federal Rail Safety Act. The railroad appealed.

The 3rd Circuit Court of Appeals said that once an em­­ployee shows he engaged in whistle-blowing by reporting an injury, the employer has to show that it would have taken the same disciplinary action against the employee even if he hadn’t reported the injury. In this case, the railroad had not done so.

The court was especially concerned that it appeared super­­visors weren’t worried about anything Anthony might have done wrong until after he re­­ported his own injury. It upheld Anthony’s award. (Araujo v. New Jersey Transit Rail Operations, No. 12-2148, 3rd Cir., 2013)

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