On Tuesday, April 6, 2010, the federal Occupational Safety and Health Administration (OSHA) imposed a $569,000 penalty on NJ Transit for retaliating against an employee who reported a work-related injury, according to the New Jersey Law Journal.
While the amount of the award is noteworthy - it is the largest penalty imposed under the recent Federal Rail Safety Act, which prohibits discrimination against railroad whistleblowers — it is also groundbreaking in other ways. While successful whistleblowers can recover back pay and front pay (the difference between the income that the employee could have earned, and what he or she actually did earn), OSHA awarded consequential damages for the injuries caused as a result of the loss of income. More specifically, OSHA awarded the employee, Anthony Araujo, $40,271 for lost wages, $50,000 for damage to his credit rating, $12,297 for loss of his car and $345,754 for loss of his home. OSHA also imposed $75,000 in punitive damages, and $5,000 emotional pain and suffering, as well as various other fines and damages.
It appears that OSHA intended to send a strong message, particularly in light of its finding that NJ Transit showed ”reckless disregard for the law and complete indifference for complainant’s rights.” More specifically, Araujo’s responsibilities included protecting a contractor’s crew from passing trains. During one of Araujo’s shifts, a contractor’s employee came in contract with an electric line above the tracks, causing an explosion.
The case stems from a fatal explosion on Feb. 25, 2008, at a job site along a railroad right-of-way in Newark where Araujo had been assigned to protect a contractor’s crew from passing trains. The employee’s clothes caught on fire and, although Araujo radioed for help, the employee died the following day from burns suffered from the explosion.
Following an initial investigation shortly after the accident, Araujo’s supervisor informed him that he had done nothing wrong. The next day Araujo told his supervisor that he was distraught and unable to sleep. He also requested help from NJ Transit’s Employee Assistance Program, was diagnosed with post-traumatic stress disorder, and began counseling. On February 27, Araujo was then put on paid EAP leave, Araujo’s supervisor called his EAP counselor, complaining that Araujo was malingering.
On March 5, 2008, NJ Transit notified Araujo that he was under investigation for violating agency policies in connection with the accident, and it suspended without pay. NJ Transit held a disciplinary hearing more than six months later, and finally notified Araujo on February 11, 2009 that his discipline was over, and that he could return to work. During his suspension, Araujo had no income from NJ Transit, and tried to live on credit cards, but ultimately lost his house and car, and his credit rating suffered dramatically.
In announcing its findings, OSHA’s Regional Administrator Robert Kulick said, “A preponderance of the available evidence indicates that Complainant’s reporting of his work related illness was a contributing factor in the adverse actions taken against him. Accordingly, OSHA finds that there is reasonable cause to believe that Respondent violated FRSA.” OSHA also noted that NJ Transit did not cooperate in its investigation, did not make employees available for questioning and, although it requested an extention of time to file an answer to the charge, it never did so.
This case underscores the need for employers to take employee complaints seriously, to investigate fully and promptly, and to cooperate in governmental investigations.