OMAHA, Neb. – Union Pacific routinely hires private investigators to check out employees’ medical leave claims and then fires anyone who happens to leave their house while out on leave, according to a lawsuit filed against the railroad.
The lawyer who last month filed one of the first lawsuits in a case like this in Texas said this practice is another example of how the railroads keep the pressure on train crews to remain on call 24-7 while making them afraid to take unpaid time off they're supposed to get under the Family Medical Leave Act.
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Now that the Texas case is moving forward in the courts, the lawyer, Nick Thompson, said he plans to look into the claims of several other UP employees who have contacted him with similar concerns that could turn into additional lawsuits.
“Ultimately, this has the effect Union Pacific wants: It scares people from using FMLA,” Thompson said.
Omaha, Nebraska-based Union Pacific says it didn’t do anything wrong when it fired De’Ron Rutledge because railroad managers believed he was abusing the medical leave rules by repeatedly taking time off as he was recovering from a back injury he suffered on the job. Spokeswoman Robynn Tysver said UP follows all the rules for providing Family Medical Leave Act time off.
“We encourage eligible employees to use FMLA if they or their family member has a serious medical condition that qualifies under the law,” Tysver said. “We expect our employees to properly utilize this approved leave. If we learn that an employee is misusing FMLA, Union Pacific may take disciplinary action, as permitted under the law.”
This whole situation might be less of a problem if employees had paid sick time, but the railroads have only started to address that concern in recent months through agreements giving some of their unions four days of paid sick time. But so far, most of the conductors and all of the engineers who work in locomotives — representing more than half of all rail workers — still don't have sick time. And those train crews have the most-demanding, unpredictable schedules.
“I just don’t think it’s reasonable to have people on call 24-7, 365 days a year, including holidays and give them no sick days," Thompson said.
The longstanding lack of paid sick time in the industry was a key issue that helped push railroads to the brink of a strike last fall before Congress intervened to block a walkout and force workers to accept a deal.
Railroads might be less likely to be this aggressive enforcing medical leave rules if they weren't so short on employees. The shortage led railroads to acknowledge struggling over the past year to handle all the shipments many companies want them to deliver.
Collectively the major freight railroads eliminated nearly one-third of their jobs over the past six years as they stripped down their operations to rely on fewer and longer trains so they wouldn't need as many employees or locomotives to run them. The railroads have been hiring aggressively since the height of their service problems last spring but they've had a hard time finding all the workers they need.
“Hiring more people is expensive. Mistreating the employees you have costs nothing,” said Thompson, whose Wisconsin-based firm handles many complaints from railroad employees nationwide.
Several other major freight railroads, including CSX and Norfolk Southern, have faced other lawsuits over the way they administer the federal Family Medical Leave Act.
In the Texas case, Rutledge had worked various jobs at Union Pacific over 11 years leading up to working as a conductor before he was fired last year. According to his lawsuit, Rutledge had to take eight months off work to rehabilitate after the back injury in 2017 but after returning to the job he would occasionally need to take additional time off when his back condition flared up.
But the railroad fired him after a private investigator saw Rutledge drive to the grocery store and gas station near his home in Fresno, Texas, and walk for short periods. And Rutledge said his bosses wouldn't listen when he tried to explain that even if he was well enough to run a few errands he didn't feel up to helping operate a train.
“The fact that you’re on FMLA doesn’t mean that you have to lay in bed all day. The fact that you can’t work a 12-hour shift is different than whether you can do other things," Thompson said.
Union Pacific is one of the nation's largest railroads operating trains across 23 Western states.
To Thompson, both this lawsuit and the recent string of high-profile derailments are symptoms of the same thing employees and their lawyers have been saying for several years:
“Railroads are putting profit ahead of everything — ahead of safety, ahead of employee well being — and we're seeing the results of that," he said.
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This story has been updated to correct that most conductors have not, rather than have, received paid sick time leave.