Public Transportation
Doyle Dennis represents whistleblowers and employees who have reported safety or security issues, during the operation of public transportation. The National Transit Systems Security Act of 2007 (“NTSSA”) protects employees from retaliation or wrongful termination if they made protected reports related to the safety or security of public transportation.
Who is protected by the NTSSA?
The NTSSA applies and protects employees who have reported safety and security violations of a public transportation agency. The Department of Labor has defined an employee any of the following: “an individual presently or formerly working for, an individual applying to work for, or an individual whose employment could be affected by a public transportation agency or a railroad carrier, or a contractor or subcontractor of a public transportation agency or a railroad carrier.”
Who may be liable under the NTSSA?
The NTSSA precludes retaliation by a public transportation agency, contractors, sub-contractors, and officers/employees. Congress defined a public transportation agency as a “publicly owned operator of public transportation eligible to receive federal assistance.” The statute further clarifies that Public Transportation means “regular, continuing, shared-ride surface transportation services that are open to the general public or open to a segment of the general public defined by age, disability or low income.” As a result, this would include bus systems, light rail, subways, commuter trains, and even some ferries. Some specific forms of transportation, are excluded from coverage, including the following: Intercity passenger rail transportation provided by Amtrak, Intercity bus services, Charter bus service, School bus service, Sightseeing transportation service, Courtesy shuttle service of one or more specific establishments, and Intra-terminal or intra-facility shuttle services.
For a contractor to be liable under the NTSSA, the report or whistleblowing activity must be related to the contractor’s work on behalf of a public transportation agency. This may include maintenance companies, testing companies, or part manufacturers.
What is protected?
The NTSSA broadly protects two different groups of protected acts – general protected activities and reports and work refusals related to hazardous safety or security conditions. Specifically, a covered employer may not retaliate against an employee for any of the following:
- Providing information, directly causing information to be provided, or otherwise directly assisting in any investigation regarding any conduct that the employee reasonably believes violates any federal law, rule, or regulation relating to public transportation safety or security or fraud, waste, or abuse of Federal grants or other public funds intended to be used for public transportation safety or security;
- Refusing to violate or assist in violation of any Federal law, rule, or regulation relating to public transportation safety or security
- Filing a complaint of retaliation, or causing a proceeding to be brought, or testifying in a proceeding related to enforcement of the NTSSA anti-retaliation provision.
- Cooperating with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board (NTSB).
- Providing information to a governmental agency relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with public transportation;
- Reporting a hazardous safety or security condition.
- Refusing to work when confronted by a hazardous safety or security condition, provided that certain conditions are met; or
- Refusing to authorize the use of any safety or security-related equipment, track, or structures, if the employee is responsible for the inspection or repair of the equipment, track, or structures, when the employee believes that the equipment, track, or structures are in a hazardous safety or security condition, provided that certain conditions are met.
What is Retaliation?
As part of the NTSSA, a covered employer may not “discharge, demote, suspend, reprimand, or in any other way discriminate” against worker for the protected acts. As confirmed by federal courts, this would include any conduct that may dissuade a reasonable employee from engaging in protected activity. Adverse action may include firing, termination, suspension, demotion, and other similar egative acts.
How can I prove retaliation?
Similar to other federal whistleblower claims, an employee asserting claims under the NTSSA must show that they engaged in a protected act under the NTSSA, were subject to an adverse action, that the covered employer knew about the protected act, and that the act was a contributing factor in the adverse action. The NTSSA applies the contributing factor standard for causation. And as a result, the employee show that the protected act was a factor which, alone or with other factors, in any way affects the outcome of a decision.
How do I file a claim or lawsuit?
If an employee has been subject to retaliation under the NTSSA, the worker must file a complaint with OSHA within 180 days of the retaliation or after the date when the employee learned of the retaliation. OSHA will then open an investigation, and, ultimately, make findings regarding the claim. After those findings, the employer or employee may request a hearing with an Administrative Law Judge. This process will then entail discovery and testimony before the ALJ. After the ALJ makes a decision, the employer, employee, or OSHA may appeal to the Department of Labor. If the Department has not ruled on the appeal after 210 days from the filing of the complaint, the employee then may file a lawsuit in federal court.
What damages are available?
An employee covered by the NTSSA who has been retaliated against, may assert damages for past and future wage loss, mental anguish, compensatory damage, punitive damage, and attorney’s fees.
