Railroad Whistleblower
Doyle Dennis Avery LLP represented railroad workers who have been retaliated against or terminated for reporting violations of law. Congress created the Federal Railroad Safety Act (FRSA) 49 U.S.C. §20109 to encourage safety in the operation of railroads and to reduce railroad injuries by encouraging reports of violations of law regarding safety, security, work-related injuries, hazardous safety, and security conditions.
Who may be liable under the FRSA?
An employee who has been wrongfully terminated or retaliated against my seek damages against the retaliating Railroad, their sub-contractor or contractors, and individual officers and employees of railroad carriers who have violated the FRSA.
Who is protected under the FRSA?
Generally, the FRSA applies to employees of railroad carriers who are engaged in interstate or foreign commerce. In addition, the FRSA may apply to contractors and sub-contractors of railroad carriers as well. Under the FRSA, a “railroad carrier” is a person or entity providing railroad transportation. In addition, Congress defined railroad any form of non-highway ground transportation that runs on rails or electromagnetic guideways. Importantly, this encompasses service in a metropolitan or suburban area and high-speed ground transportation systems that connect metropolitan areas, even if those systems may not be associated with traditional railroads.
According to OSHA, the following types of railroad carriers are generally covered by the FRSA:
- Long-distance, intercity passenger railroads;
- Commuter railroads;
- Freight railroads;
- High speed ground transportation systems that connect metropolitan areas; and
- Short-haul passenger service;
- Most tourist, scenic, and excursion railroads.
What is protected under the FRSA?
The FRSA includes broad coverage for three categories of whistleblowers– (1) “general” protected activity; (2) hazardous safety or security conditions; and (3) prompt medical attention. In more detail, a railroad (or its employees or contractors) may not retaliate against an employee for –
- Providing information or causing information to be provided to assist an investigation regarding a violation of law, rule, regulation, safety violation, security violation, or gross fraud, waste, or abuse of federal funds if the investigation is conducted by a Federal, State, or local regulatory or law enforcement agency, member of Congress, or person with supervisory authority.
- Refusing to violate or assist in the violation of any federal law, rule, or regulation relating to railroad safety or security;
- Filing a complaint, or directly cause to be brought a proceeding related to the enforcement of this part or, as applicable to railroad safety or security;
- Notifying, or attempt to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury or work-related illness of an employee;
- Cooperating with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board;
- Furnishing information to investigative governmental entities regarding the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with railroad transportation;
- Accurately reporting hours on duty;
- Reporting, in good faith, a hazardous safety or security condition;
- Refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties;
- Refusing to authorize the use of any safety-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;
- Denying, delaying, or interfering with the medical or first aid treatment of an employee who is injured during the course of employment; and
- Disciplining, or threatening discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician.
What is retaliation?
Under the FRSA, an employer may not “discharge, demote, suspend, reprimand, or in any other way discriminate” against an employee for the above listed protected activity. This includes, termination, firing, demotion, and other discipline of an employee.
How can I prove retaliation?
To prove a claim, an employee must show that they (1) engaged in a protected activity; (2) the retaliating party knew or suspected that the worker engaged in a protected activity; (3) the worker suffered an adverse action; and (4) the protected activity was a contributing factor in the adverse action.
Similar to many of the other federal retaliation statutes, the FRSA applies a “contributing factor” standard of causation. According to OSHA, a contributing factor is a factor which, alone or with other factors, in any way affects the outcome of a decision. This standard is significantly lessoned from the traditional standard of causation for other types of retaliation claims. As a result, the FRSA provides a strong and important protection for railroad workers.
How do I file a claim or lawsuit?
An employee who believes that he or she has been retaliated against in violation of FRSA may file a complaint with OSHA. The employee or the employee’s representative must file this complaint within 180 days after the retaliation or after the date when the employee learned of the retaliation. OSHA will then conduct an investigation regarding the retaliation allegations. After OSHA makes its finding, either the employee or employer (or both) may request a hearing, de novo, with an Administrative Law Judge. During this period, the parties can conduct discovery and obtain testimony. After the ALJ makes a finding, OSHA, the employer, or the employee can file an appeal to the Department of Labor. If the final appeal has not been decided by 210 days after the initial complaint, the employee may file a lawsuit in federal court under a “kick-out” provision.
What damages are available?
An employee who has been retaliated against may be entitled to reinstalment, past and future wages, mental anguish, compensatory damage, punitive damage, and attorney’s fees.
