A recent lawsuit tried in federal court has exposed a flawed culture within Burlington Northern Santa Fe (BNSF) Railway. Testimony during the suit established that BNSF operating policies and practices created and encouraged a company culture that incentivizes managers to discourage the reporting of employee injuries and to retaliate against those employees who report such on-the-job injuries. While BNSF claims otherwise and touts a façade of policies and pronouncements designed to give the appearance that they act appropriately, money speaks louder than words, and their Incentive Compensation Plan and Performance Management Program unfortunately expressly take on-the-job injuries into account in manager bonuses and promotion opportunities.
Brandon Ogden, a BNSF employee for a decade, including substantial time in BNSF management, was called to testify as an expert in the federal case. Among other issues, he spoke about his own experience with the company and those he witnessed while serving in BNSF management roles.
In his impressive decade with the railway, Mr. Ogden served as a switchman and conductor and in BNSF management. He was serving at the superintendent level when he elected to leave BNSF for family reasons, but he left with a further promotion opportunity on the table with BNSF. For much of his career, Mr. Ogden was directly involved with the application and interpretation of the company’s operating procedures and practices, and has deep knowledge of those practices and procedures.
In particular, Mr. Ogden was tasked with investigating railroad injuries and determining if disciplinary action should be taken in such cases. He testified that he investigated hundreds of accidents during his time with the company. He was also involved in overseeing hundreds of disciplinary events.
What BNSF Structures Encourage Suppression of Injury Reporting?
Mr. Ogden testified that the Incentive Compensation Plan (“ICP”) and Performance Management Program (“PMP”) are the primary drivers of the suppression of injury reporting among BNSF employees.
The ICP is the structured bonus compensation plan in which BNSF management personnel participate. A factor in bonus compensation, however, is safety, which includes an analysis of on-the-job injuries sustained by employees. Similarly, the PMP sets forth the issues on which manager performance are judged by the company through its supervisors. Again, the PMP includes an analysis of the total number of “reportable injuries” that occur within a manager’s territory. “Reportable injuries” are those injuries an employee suffers while working at a railroad that are significant enough, in time lost or severity, to require reporting to the Federal Railroad Administration.
There is also a working connection between PMP and the ICP. A manager who performs well under the PMP receives a higher bonus under the ICP. In addition, a high PMP ranking means a manager is on pace for a promotion or raise.
How Did These Structures Lead to Suppression of Injury Reporting and Retaliation Against Employees That Reported Injuries?
The answer to this question has to do with the fact that the PMP and ICP take into account reportable injuries. This created a disincentive for manager to have a high number of reportable injuries in their regions, and created a competition to have the least such injury reports, as under these policies, less reports means a higher bonus and a greater opportunity for advancement.
According to the witness in the federal case:
“The frequency [of injuries] and safety in general is tied into the manager’s performance [through] the PMP rating…So, if a manager is rated poorly on their PMP, they get a bad rating from their supervisor, then what happens is that directly impacts the potential bonus that the manager may receive. If an employee – if an employer or a number of employees are reporting injuries on your territory, that is going to negatively impact your PMP, your rating and impact your bonus. It will also impact your potential for a promotion. BNSF has what they call succession planning. And to be considered for a potential promotion, you need to rate high on your performance management.”
Given the link between reportable injuries and BNSF bonuses and promotion, the company’s policies essentially give managers the financial incentive to not report employee injuries and the financial incentive to retaliate against any employees who do report an injury. The result is a company culture set up to discourage reporting of injuries at BNSF.
Did BNSF Culture Actually Lead to Suppression of Injury Reporting?
The answer is “yes.” The financial incentives above did actually lead to managers not properly reporting injuries and managers retaliating against employees who did report injuries.
Mr. Ogden’s testimony provided inside evidence of this suppression. When asked of the link between reportable injuries and PMP performance/career advancement, the witness said:
“It created a culture of not wanting employees on your territory or under your supervision reporting injuries.”
This answer lead to the following Q and A session:
Q: “Did you see managers function within that culture in a way that might be retaliatory to individuals who reported injuries?”
. . .
Q: “Are you aware of individuals that you worked with as colleagues who did [that]?”
Q: “What did you observe those individuals do in response to reportable injuries?”
A: “I would see managers all the way up to the general manager level, what I would consider target employees who were reporting hazardous safety concerns as well as reporting injuries to them.”
Q: “Did you ever see in that culture or observe the use of the disciplinary process to retaliate against individuals reporting injuries?”
A: “Absolutely. The BNSF discipline process is very discretionary. They have a [disciplinary] policy that is out there, but at the end of the day, BNSF and the managers pick and choose who they discipline and how they discipline those individuals. As I said, it is discretionary and they decide how harsh or how little to discipline an employee. A lot of times it is very similar rule violations, and they choose to discipline an employee much tougher or harsher because they have reported an injury.”
Q: “Did you regard the PMP process where reportable injuries can negatively affect how much money you make or what kind of career advancement you might have as a good corporate policy?
A: “No, I didn’t.”
Q: “Why not?”
A: “It creates a horrible culture. It also – it creates a conflict on interest for the managers. It puts employees…in a very poor position.”
Rossi Vucinovich is Dedicated to the Safety of Railroad Workers – No Exceptions
Rossi Vucinovich PC has been helping railroad employees and their families recover for work-related injuries for over 50 years. Given our commitment to these workers, we were outraged to learn of BNSF’s practices that result in railway personnel being injured and tossed aside, having their injuries suppressed in the name of money and prestige. The culture that exists at BNSF only works to silence employees and impede the growth and dedication towards railroad safety.
If you are a BNSF employee who has been hurt on the job, contact us now to get true help that makes all the difference. If you have been terminated or disciplined for filing a personal injury report, let us help you.
Of course, BNSF is not alone in these practices—we just happened to elicit this testimony showing their practices in court. At Rossi Vucinovich, we help employees of all railroads. If you are a railroad worker who has suffered a work injury, or one who has suffered retaliation for reporting a work injury, contact us so we can advise you on your case. Our railroad injury lawyers are dedicated to helping injured railroad workers obtain the compensation they deserve.
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