"Firing workers for reporting an injury is not only illegal, it also endangers all workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury can occur. To prevent more injuries, railroad workers must be able to report an injury without fear of retaliation. The Labor Department will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights. Employers found in violation will be held accountable."
Dr. David Michaels
Assistant Secretary of Labor for Occupational Safety and Health
What are whistleblower protections under the FRSA?
The Federal Rail Safety Act (“FRSA”) applies to railroads engaged in interstate commerce (most railroads in the U.S.) and provides a means for the U.S. Department of Labor to enforce the law and hold a railroad accountable for violations. There are some key requirements that must be met before an employee can be awarded damages, under the FRSA. Here are the key requirements that an employee must show to prevail in a FRSA whistleblower action:
The employee must have engaged in a “protected activity.”
There must be an “adverse action” taken against the employee.
The person(s) who disciplines the employee must have knowledge that the employee has engaged in a protected activity.
The fact that the employee engaged in protected activity must have played a role in bringing about the adverse action.
The employee must have suffered some harm as a result of the adverse action.
The employee must file a complaint with OSHA within 180 days from the date the adverse action was taken against the employee.
Protected activity under the FRSA:
All of the below activities must be made in “good faith.”
Notifying or attempting to notify a railroad or the Secretary of Transportation of your own or a co-worker’s work related injury or illness.
Good faith reporting of a hazardous safety condition.
Refusing to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security.
Following the treatment plan of YOUR treating physician for a work-related injury. The railroad cannot delay or interfere with your medical treatment.
Providing information regarding a violation of any federal law, rule or regulation relating to railroad safety or security and/or refusing to violate such a law rule or regulation.
Filing an FRSA complaint or testifying in an FRSA matter.
Refusing to authorize the use of unsafe railroad equipment, track or structures.
Refusing to work under hazardous safety or security conditions.
Furnishing information to any regulatory or law enforcement agency regarding any railroad incident resulting in death, injury or property damage.
Reporting gross fraud, waste or abuse of public funds intended for use in railroad safety or security.
Accurately reporting your hours of service.
To cooperate with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board.
Adverse action under the FRSA:
Railroad discharges employee.
Railroad demotes employee.
Railroad suspends employee.
Railroad reprimands employee.
Railroad discriminates an employee “in any other way.”
Remedies for adversely impacted employee:
Reinstatement with the same seniority status that the employee would have had but for the discrimination.
Any backpay, with interest.
Compensatory damages, including compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees and reasonable attorney fees.
Relief may include punitive damages in an amount not to exceed $250,000.Brian Reddy was the first lawyer to represent a railroad worker in an FRSA appeal that the railroad, in this case Consolidated Rail Corporation, brought to the United States Court of Appeals for the Sixth Circuit.That case involved an employee who was fired after the railroad decided he had verbally threatened a supervisor at work. After a hearing with an Administrative Law Judge ("ALJ"), the U.S. Department of Labor, decided that the railroad was not credible,that there really never was a threat, and that the real reason the worker was fired was because he had previously provided written reports of unsafe conditions at work to his employer. This reporting of unsafe conditions is another protected activity as is reporting an on duty injury. The railroad appealed to a Department of Labor Administrative Review Board, who affirmed the ALJ's decision. On the final appeal, after hearing argument presented by the railroad's lawyers and Brian Reddy, the U.S. Court of Appeals decided that the ALJ's decision in favor of the worker should stand.If you are a railroad union official, Brian Reddy is available to attend any union meetings if you think this would be helpful for your members. Just give Brian Reddy a call and he will work with you to schedule a presentation on the FELA or the FRSA whistle blower protections.Call The Reddy Law Firm at (419) 482-1467 today.