Rules Testing as a Form of Harassment

How would you like your supervisor to follow you all day, look over your shoulder at everything you do, and write down every time you make a mistake? This is what railroad employees endure during rules tests on a regular basis. For the vast majority of employees, the process can be fairly routine. If the employee recently reported a workplace injury, however, or settled a case under the FELA, the process can be career-threatening.

I have seen many recent cases in which railroads use the rules testing process as a form of harassment against workers who report workplace injuries. The testing is longer, more intense, and more frequent for injured employees. Every perceived violation is pursued through the progressive discipline process. (It is at times equivalent to you getting pulled over by the police and given a ticket every time you drive a few miles per hour over the speed limit). I have dealt with cases in which rules violations are fabricated by the railroad, conditions are set up so it is almost impossible for the employee to comply with all rules, or where the supervisors simply continue observations until they find a violation, no matter how long it takes. For the first violations, the railroad offers the employee a reduced penalty in exchange for an admission of guilt. Eventually, the employee will be facing termination.

This type of harassment may be actionable under the Federal Rail Safety Act ("FRSA"). The FRSA prohibits a railroad from retaliating against an employee for notifying the railroad of a work-related personal injury. Rules testing may rise to the level of retaliation if it can be shown that the railroad treats you more harshly than other employees because you were injured. If you feel that you are being harassed because you reported an injury, contact our office and we can investigate whether you have a potential claim under the FRSA.

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