"Good Faith" Reporting of Hazardous Safety Conditions

Today's front page article in the New York Times exposes the fundamental problem with the rail management's safety culture. When a mayor and her fire chief went to the site of a liquid gas derailment in their town, the railroad threatened to arrest them. Describing the railroad's response to their legitimate concern over an obvious safety hazard, the mayor said, "They don't have to tell us a thing. It's a very arrogant attitude." For the full "Hazards Ride the Rails in Secret" article, click here.

Not surprisingly, railroad employees who report safety hazards are subjected to the same arrogant hostility. Congress responded by enacting Subsection (b)(1)(A) of the Federal Rail Safety Act, which protects employees for "reporting, in good faith, a hazardous safety or security condition."

But what constitutes the "good faith" reporting of a safety hazard? Is a worker's "honest, subjective belief" sufficient? Or must the belief be "objectively reasonable"? The recent district court decision in Jason Worcester v. Springfield Terminal Railway Company elucidates the answer to those questions.

When Springfield Terminal ordered untrained personnel to remove hazardous material from the right of way, Signal Foreman Jason Worcester objected, warning it would be unsafe. He was charged with insubordination, subjected to the usual kangaroo court, and terminated.

After Jason filed for a jury trial in federal court, the Railroad moved to dismiss the case, arguing his report of the safety hazard was not done "in good faith." The district judge denied the motion and ordered the case to trial. In so doing, the Court noted:

"An employee taking on a task he cannot safely complete could constitute a hazardous safety condition," and "warning a supervisor about such a condition could constitute reporting."

The Court found both the "subjective belief" and "objective reasonableness" standards were satisfied by the evidence in the case. However, the Court also stressed that Subsection (b)(1)(A) "contains no explicit requirement that the employee's actions be objectively 'reasonable.'"

Bottom line? The text of the FRSA does not require "objective reasonableness" for reports of safety hazards. The rules of statutory interpretation dictate that "good faith" is satisfied when the employee "held an honest, subjective belief that there was a hazardous safety or security condition." For the full text of Worcester v. Springfield Terminal Railway Co., click here. For a Summary of the FRSA, click here. For free access to the Rail Whistleblower Library, click here.

A Road Map For FRSA Attorney Fee Awards

The second Federal Rail Safety Act jury trial in the nation has precipitated a primer on the award of FRSA attorney fees. In Brig and Buchala v. PATH, the jury found the Railroad violated the FRSA when it retaliated against two workers who complained when an unscheduled train nearly struck them. Here are excerpts from Senior District Judge Patterson's application of the controlling factors:

Presumptively Reasonable Fee
A "presumptively reasonable fee" is "the product of a reasonable hourly rate and the reasonable number of hours required by the case." The fee applicant bears the burden of documenting the appropriate hourly rate and hours expended.

Reasonableness of Time Billed
"Three conditions must be met to establish reasonableness of the time expended: "First, the hours submitted must be documented with contemporaneous records. Second, the records must not be overly vague. Finally, the billed time must have been reasonably spent."

As for detail, "the records need only specify the date, the hours expended, and the nature of the work done." "Counsel is not required to record in great detail how each minute of his time was expended, but he should identify the general subject matter of his time expenditures." Best practice is to log the task as soon as it is completed.

Time Billed During OSHA Proceedings Is Recoverable
Filing a complaint with OSHA "is a step that is required by the FRSA before an employee plaintiff is allowed to bring an FRSA action in district court. Accordingly, any hours billed pursuant to OSHA proceedings are recoverable."

Time Billed For Requesting Attorney Fees is Recoverable
"It is proper to award attorney fees for time sought in connection with the arguments and submissions made regarding a fee award request."

Establishing Prevailing Market Rates
"In order to determine a reasonable rate, the lodestar looks to the prevailing market rates in the relevant community." The "relevant community to which the court should look is the district in which the case was brought."

"To determine the currently prevailing reasonable rate, courts look first to the lawyer's level of experience."

"A review of the prevailing rate for an attorney of counsel's experience in the relevant community is then required." Courts usually establish a spectrum of rates by looking to awards in other cases, with "rates on the highest end of the spectrum reserved for extraordinary attorneys held in unusually high regard in the legal community."

Recoverable Costs
Under the FRSA, a prevailing employee is entitled to an award of "litigation costs," including "those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." Substantiation of those expenses is accomplished by providing a summary list with invoices attached.

For the complete text of Judge Patterson's Decision, click here. For free access to the Rail Whistleblower Library, click here.

The Long And The Short Of FRSA OSHA Complaints

There now are two formats for filing a Federal Rail Safety Act whistleblower retaliation complaint with OSHA: short form and long form.

On Line Short Form
OSHA recently gave workers the option to file a whistleblower complaint on line, using the form available at OSHA's web site. This may be a good option for a worker who does not have an attorney or is under pressure because the 180 day window for filing is about to close (and the 180 days begins to run on the date the employee first learns the railroad would be taking taking the adverse action against him or her). So while the upside is that filing the form electronically will instantly register the complaint as filed, the downside is it may be lacking in persuasive details and supporting material. For a link to the OSHA on line complaint form, click here.

Long Form
The long form is just another way to describe a detailed written complaint tailored to the facts of an employee's case. The purpose of the long form complaint is to present the facts and exhibits to the OSHA investigator in such a way that the merit of the claim becomes self-evident.  Generally, such complaints are best drafted and refined through an interactive process between an attorney and the employee. For an example of such a long form complaint based on a classic set of facts, click here.  For a Summary of the FRSA, click here.  For access to the free Rail Whistleblower Library, click here.

FRSA Federal Court Jurisdiction Clarified

The latest Federal Rail Safety Act district court decision confirms that the statutory jurisdiction of the federal courts over railroad whistleblower cases can not be limited by DOL regulations or actions.

After trackmen Donald Glista and William Orr reported injuries, Norfolk Southern Railway fired them for "conduct unbecoming" and for making "false and conflicting statements." For that blatant FRSA violation OSHA ordered Norfolk Southern to pay Glista $620,523 and Orr $297,985. The Railroad objected and pushed it up to the ALJ level. Before any ALJ trial was held, the workers filed a Notice of Intent to file in U.S. district court. Five weeks later the ALJ dismissed the complaint with prejudice, and then four weeks after that the workers actually filed their complaint in district court.

Norfolk moved to dismiss, arguing the ALJ's dismissal was a "final" DOL order barring federal court jurisdiction. The district judge disagreed. Stressing "the FRSA is a remedial statute that should be liberally construed in order to protect the plaintiff employees," the Court held the "plaintiffs had a statutory right to remove their claim from the administrative process because the requisite 210 days had clearly elapsed."

The Court also held that OSHA's 15 day notice regulation is not mandatory: "it is clear that failure to provide such notice is not a binding requirement, preclusive to exercising the right to de novo review or indicative of bad faith." This is consistent with the district court holding in Pfeifer v. Union Pacific Railroad Co.: "the FRSA statute contains no reference to a notice requirement, and thus the DOL regulation has no statutory basis in the law."

Bottom line? After 210 days, in the absence of a final decision on the merits by the DOL, an employee has an absolute statutory right to file in federal court with or without giving 15 day notice.  For the full decision in Glista and Orr v. Norfolk Southern Railway Co.,click here.  For a Summary of the FRSA,click here.  For free access to the Rail Whistleblower Library,click here.

FRSA Miscellany

Here's a Miscellany of Federal Rail Safety Act items, ranging from the United States Supreme Court to how to file in federal district court to how to award attorney fees.

United States Supreme Court Cites Section 20109

Protecting whistleblowers has deep bipartisan support in Congress, and the United States Supreme Court also goes out of its way to protect whistleblowers. And true to form, the Supreme Court's first reference to 49 USC Section 20109 bodes well for any FRSA whistleblower case that may wend its way to the nation's highest court.

The cite comes in the Court's recent decision in the SOX whistleblower case of Lawson v. FMR LLC. SOX is the Wall Street whistleblower statute that protects employees who blow the whistle on fraud affecting the stocks of publicly traded companies. The issue was whether the language of the SOX statute was broad enough to include employees of contractors to public companies.

Noting that SOX was modeled after the AIR-21 whistleblower statute protecting airline employees, the Supreme Court endorsed the broad remedial interpretation of AIR-21 and applied it to confirm the expansive scope of SOX. In a footnote, the Supreme Court stated: "For other provisions borrowing from AIR-21, see 49 U.S.C.. 20109, governing rail carriers, which incorporates AIR 21's enforcement procedures." Lawson at fn.19.

So for those railroads who may be itching to challenge the FRSA in the Supreme Court, be careful what you wish for. There is no reason to think the result will be any different from the dope slapping the Circuit Courts have applied to every attempt by the railroads to undercut the FRSA.

Liberal Filing in Federal Court

The U.S. District Court decision in Pfeifer v. Union Pacific Railroad Co. illustrates the liberal filing standards applicable to FRSA cases.

OSHA found Union Pacific retaliated against Nick Pfeifer after he reported a rough track hazardous safety condition. Union Pacific objected and the case went to an ALJ bench trial. The ALJ ruled against Pfeifer and dismissed his FRSA complaint. Pfiefer petitioned for review by the ARB, and then filed for a jury trial in federal district court, but without first giving the DOL a15-Day Notice of Intent to file. Union Pacific filed a Motion to Dismiss in the district court, arguing the ALJ's dismissal controlled and the lack of a 15-day Notice barred federal court jurisdiction.

District Judge Julie A. Robinson rejected both of the Railroad's arguments. She held the DOL's regulations asking for a 15-day Notice before filing in federal court is not binding:

the FRSA statute contains no reference to a notice requirement, and thus the DOL regulation has no statutory basis in the law. . . .The statute gives federal courts jurisdiction to hear whistleblower claims de novo under certain circumstances, and when those circumstances are met, the agency may not strip the courts jurisdiction by adding additional requirements. . . .The Court does not lack jurisdiction due to a lack of notice to the DOL.

As for the ALJ's administrative dismissal, Judge Robinson held it had no effect on the federal court proceeding. For an employee to file "a protective appeal to the ARB to maintain his right of removal to federal court would not be indicative of bad faith." She noted that "administrative decisions that are not final decision do not have a res judicata effect," and "because Pfeifer has removed this action, as authorized by statute, the Secretary of Labor has not issued a final decision."

Bottom line? An ALJ's non-final administrative dismissal does not bar an employee from filing in federal court for a jury trial without giving notice to the DOL first.

How To Figure Attorney Fee Awards

The Administrative Review Board and the Administrative Law Judge in the Bala v. PATH case have issued decisions outlining the criteria for determining a reasonable hourly rate for attorneys who successfully represent FRSA complainants. Factors include "location of counsel, his years of experience, the level of expertise, the complexity of the case, the risk of loss, delay in payment, and the amount of the award." In order to establish the appropriate prevailing market rate, counsel must submit "affidavits of other lawyers" and "evidence of the fees counsel received in cases of similar complexity."  The ARB Decision and the ALJ decision should be read in conjunction with U.S. District Judge Arterton's fee decision in Barati v. Metro North Railroad.

It is important to note that even if a rail worker's FRSA economic award is minimal, his attorney still is entitled to an award based on the full amount of his time. For example, Bala's economic award was only $1,101, but his attorney was awarded a fee based on 100% of his hours at $525 an hour, for a total fee award of $72,000.  The public policy encouraging such fee awards is spelled out by the Second Circuit's Decision in Millea v. Metro North Railroad.

For a Summary of the FRSA, click here. For all the materials on the FRSA in the Rail Whistleblower Library,click here.

Railroad Hearings Are Not Binding In FRSA Cases

In a definitive decision, a U.S. Circuit Court of Appeals has barred railroads from using RLA arbitration findings to preclude Federal Rail Safety Act whistleblower retaliation cases. The Court held that self-serving railroad disciplinary hearings cannot and do not have any effect on the right of employees to sue railroads for violating the FRSA.

The fact pattern is familiar: locomotive engineer Danny Grimes reported a work-related injury, and the BNSF Railroad charged him with falsifying an injury. After the usual kangaroo court disciplinary hearing (no discovery, no attorney, no rules of evidence, with railroad managers acting as judge, prosecutor, and jury) the Railroad declared him guilty and fired him. The union appealed to a RLA arbitration board, but based on the kangaroo court record the Public Law Board found Grimes had been dishonest.

Meanwhile, Grimes had filed a FRSA whistleblower retaliation claim with OSHA and then opted into federal district court for a de novo jury trial. The district judge ruled the PLB's finding was binding on Grimes, and therefore dismissed the FRSA case. Grimes appealed to the 5th Circuit, and in a well-reasoned decision the Court of Appeals reversed, explaining:

The RLA makes the arbitral findings conclusive on the parties in the dispute governed by the RLA. . . . Those findings are not, however, necessarily conclusive in a suit brought under another statute. . . . Where the arbitral panel relies on a hearing conducted by the defendants, the arbitral findings of fact do not have preclusive effect. . . . Here, (1) the hearing was conducted by the railroad; (2) the plaintiff was represented by the union rather than an attorney; (3) the termination decision was made by a railroad employee, not by an impartial fact finder such as a judge or a jury; (4) the rules of evidence do not appear to have been controlling; (5) and most crucially, the PLB's affirmance was based solely on that record. . . .There are good reasons to require neutral arbitrators: The employer may have already developed opinions about the employee before the ultimate hearing and may have other motives to dismiss a particular employee. Thus, the employer's decision maker might assess the credibility and weight of the evidence differently than would a neutral arbitrator.

To top if off, the 5th Circuit fully endorsed the 7th Circuit's decision in Reed v. Norfolk Southern Railway Co. holding that workers are free to simultaneously pursue a RLA arbitration and a FRSA case: "The plain language of the FRSA statute tells us that an employee is not precluded from obtaining relief under the FRSA simply because he appealed his grievance to a Public Law Board."

Thanks to the federal Circuit Courts and the Administrative Review Board, the foundation of FRSA whistleblower protection law now is solidly in place. And despite the desperate efforts of railroads to invent defenses where none exist, the reality is there is one and only one defense to a FRSA case: the railroad will always be liable unless it can prove to a reasonable degree of certainty it would have taken the exact same adverse action even if the employee had not engaged in the protected activity. And in the words of the 3rd Circuit's landmark decision in Araujo v. New Jersey Transit Rail, "for employers, this is a tough standard, and not by accident. . . . the standard is 'tough' because Congress intended for railroads to face a difficult time defending themselves, due to a history of harassment and retaliation in the industry."

Amen. For the full decision in Grimes v. BNSF Railway Co.,click here. For the full Reed v. Norfolk Southern Railway Co. decision,click here. For a Summary of the FRSA whistleblower protections, click here. And for access to the free Rail Whistleblower Library, click here.

FRSA Case Law Update

Two recent decisions clarify the "intervening event" defense, the limitations period, and the basis for emotional distress damages in Federal Rail Safety Act cases.

An "Intervening Event" Is Not A FRSA Defense

Railroads often argue that the firing of an employee was based on an "intervening event" that breaks the causal connection between the FRSA protected activity and the adverse action.  The BNSF Railroad  terminated conductor Peter Peterson after he reported an injury, and raised that defense to his FRSA complaint. The resulting ALJ decision explains why the "intervening event" defense does not apply to FRSA retaliation cases:

An act that "is part and parcel of the chain of events from injury to termination" is not an intervening event. Any act that is "at least incidental to" a protected activity is not an intervening event. And even an event that is totally unrelated to an injury report is not a defense: "an intervening event does not necessarily sever the connection between protected activity and adverse action -- protected activity can be a contributing factor even if the employer also has a legitimate reason for the unfavorable employment action against the employee."

Peterson v. BNSF Railway.  Indeed, the ARB confirms that "even an insubordinate comment is not an intervening event when it was incidental to protected activity." So chalk up another railroad FRSA defense that is doomed to failure. In Peterson's case, the ALJ awarded him reinstatement with several hundred thousand dollars for back pay, emotional distress, and punitive damages.

When the 180 Day Limitations Period Begins To Run

Maverick Transportation LLC is a U.S. Circuit Court decision interpreting the FRSA's fraternal twin whistleblower statute, the STAA (which protects truck drivers from whistleblower retaliation under the same standards as the FRSA). In Maverick, a driver suffered adverse action when he refused to drive a truck he believed presented a danger to himself and the public.

The Circuit Court upheld the ARB's ruling that the 180 day "limitations period begins to run when the employee receives definitive notice of an adverse action," not necessarily when the employer takes the adverse action without the employee's knowledge. This means the limitations period begins to run only when the employee receives definitive notice of the adverse action taken by the employer. In the Maverick case, the employee did not find out until years later, but he was allowed to proceed because he filed his OSHA complaint within 180 days of his discovery of the adverse action.

Emotional Distress

The Circuit Court also affirmed the liberal standard for awarding emotional distress damages in FRSA retaliation cases. In Maverick, the employee was awarded $75,000 in emotional distress damages based solely on his own testimony without any medical evidence. The Circuit Court upheld the award, noting "A plaintiff's own testimony can be sufficient for a finding of emotional distress, and medical evidence is not necessary."

For the full Peterson decision, click here, and for the full Maverick decision, click here. For a summary of employee rights under the FRSA, click here.

7th Circuit Pulls the Plug on Election of Remedies Defense

For years, railroads have argued that a worker's pursuit of collective bargaining agreement arbitration constitutes an "election of remedies" defense to a Federal Rail Safety Act claim. But after being rejected by half a dozen judges, that bogus defense was on life support. Now, in a devastating decision, the 7th Circuit Court of Appeals has pulled the plug on it once and for all.

Reed v. Norfolk Southern Railway Company involved a classic FRSA fact pattern. Trackman Justin Reed was fired for making "inconsistent statements" regarding his injury and for not reporting it the day it occurred. Reed pursued a Public Law Board arbitration and also filed a FRSA complaint in federal court. After the PLB reinstated Reed with full back pay, Norfolk moved to dismiss the federal action, arguing that rail workers cannot recover under both the Railway Labor Act and the FRSA.

Subsection (f) of the FRSA prohibits employees from seeking protection under both the FRSA and "another provision of law for the same allegedly unlawful act of the railroad," and the Railroad argued the RLA is such "another provision of law."

The 7th Circuit emphatically rejected the Railroad's argument, pointing out the obvious distinction between seeking protection under a RLA collective bargaining agreement and seeking protection from whistleblower retaliation under the FRSA:

the Railway Labor Act offers Reed no protection at all; it merely instructs him to bring any grievances that cannot be resolved on-property to a specific forum. . . .nothing in the Railway Labor Act offers substantive protection akin to the FRSA . . .The FRSA's election-of-remedies provision only bars railroad employees from seeking duplicative relief under overlapping antiretaliation or whistleblower statutes; it does not diminish their rights or remedies under collective bargaining agreements in any way.

Thus railroad workers are perfectly free to pursue their CBA rights while simultaneously suing the railroad under the FRSA.  The CBA and the FRSA run on parallel tracks, and the progress of one does not derail the other.

The U.S. Circuit Court of Appeals is but one step below the U.S. Supreme Court. The 7th Circuit's Reed decision buries the election of remedies defense six feet under, and will stand as its eternal gravestone. So good riddance to a rotten defense, and tip of the hat to BMWE labor counsel Harry Zanville and Charlie Collins for putting the final nails in the coffin.  For all the decisions on the election of remedies issue, click here.  For a summary of the FRSA, click here.

Video Interview: Discussing the landscape of rail safety with LXBN TV

Responding to my recent post  about Metro North Railroad's Spuyten Duyvil train derailment, Colin O'Keefe of LXBN interviewed me regarding the culture of rail safety on our nations railroads, and the external and internal factors that make it so subpar.  Rail employees are the eyes and ears of safety on the property, but recently Congress and OSHA's Whistleblower Directorate have confirmed a national railroad culture where managers retaliate against workers who report injurious hazards rather than treating such reports as an opportunity to eliminate the root causes of those hazards.  So what needs to happen? Nothing less than a sea change in rail management culture, from a culture of 'shoot the messenger' retaliation to a culture of non-punitive risk remediation.  From a 'discipline trumps safety' culture to a culture where 'safety trumps discipline.'  Here is the interview:

Fatal Metro North Passenger Train Derailment Last Straw

Enough is enough. The time has come to transform the safety culture of our nation's railroads, starting with Metro North. Today's fatal crash of a Metro North passenger train in New York (the third derailment in recent months) is a wake up call that something must change, and that something is an unsafe workplace culture that gives lip service to safety while punishing the reporting of safety hazards and injuries.

Every day the operation of our nation's railroads threatens the safety of millions of passengers, employees, drivers at crossings, and homeowners along tracks where toxic and explosive materials are hauled. Safety should be the first and last consideration in everything a railroad does. But in 2007, Congress conducted hearings that exposed a railroad culture where managers react to worker reports of injurious safety hazards by retaliating against the worker while ignoring the root cause of the injury. In response, Congress gave whistleblower protection to railroad employees who raise such safety concerns, and allowed punitive damages against railroads who do not stop their abusive unsafe ways: the Federal Rail Safety Act.

Since then, the number of whistleblower claims against railroads has skyrocketed, to the point the railroad industry now is the worst in the nation when it comes to whistleblower complaints. In the past six years OSHA, judges, and juries have awarded millions of dollars in punitive damages in an attempt to force railroads to abandon their unsafe ways and adopt a truly safety friendly culture.

But still the railroads resist. Metro North is just one example. When I tried the first FRSA trial against Metro North in 2012, the jury responded with a verdict awarding $1 million in punitive damages, sending a clear message that the public will no longer tolerate a railroad culture where real safety takes a back seat to retaliation. And yet Metro North (and other railroads) persist in their old ways.

The time has come for a top to bottom transformation in the safety culture of our nation's railroads, and Metro North Railroad is a good place to start. If today's fatal passenger train derailment in New York does not trigger that change, nothing will. Here is the OSHA/FRA take on what that change of culture will involve, and here is my take on it.

FRSA Forces Railroad To Give Injured Employee Return To Work Physical

A recent decision against Amtrak clarifies the Federal Rail Safety Act rights of injured employees to return to work over a railroad's objection.

After Amtrak locomotive engineer Jonette Nagra reported a work related injury, her treating neurosurgeon kept her out of work on temporary total disability. Eventually her doctor released her to return to work full duty with no restrictions, but Amtrak refused to give her a return to work physical because she had filed a FELA lawsuit alleging permanent disability and had refused Amtrak's offer to settle conditioned on the surrender of all her rights.

Administrative Law Judge C. Richard Avery found Amtrak's conduct violated FRSA subsections (a)(4) and (c)(2) and called for punitive damages. Judge Avery's Decision is notable for its further elucidation of railroad's workers FRSA right to return to work pursuant to a treating doctor's recommendation. Citing the ARB's Decision in Rudolph v. Amtrak, Judge Avery noted:

The ARB found that under (c)(2), attempting to return to work based on a treating physician's recommendation is an FRSA protected activity, and a railroad's refusal to permit an employee's return to work based on a physician's recommendation constitutes adverse employment action. . . .

When an employee seeks to return to work based on his or her treating physician's recommendation, the railroad's refusal to allow the employee to return to work constitutes discipline in violation of FRSA subsection (c)(2) unless the railroad's refusal is based on FRA medical standards for fitness for duty or secondarily, the railroad's medical standards for fitness for duty.

In this case there was no FRA medical fitness standard or Amtrak medical fitness standard that prevented Nagra from returning to work. In other words, Amtrak has no legal defense to the adverse action taken under subsection (c)(2) of the FRSA.

Judge Avery ordered Amtrak to give Nagra a return to work physical and to reinstate her if she passes it. And in light of Amtrak's indifference and disregard for its employee's FRSA protected rights, the Judge ordered Amtrak to pay punitive damages as well as attorney fees.

This is another example of the independence of FRSA complaints from FELA lawsuits or claims. The allegations pled in a FELA lawsuit or a worker's refusal to accept a railroad's FELA settlement offer will not excuse a railroad's violations of the FRSA. For the full text of Nagra v. National Railroad Passenger Corp., click here.

Federal Court Decision Analyzes "False" and "Late" Injury Reports

An important district court decision spells out how to analyze discipline based on allegedly "false" or "late" injury reports. And also you can add it to the growing list of cases rejecting the hapless "election of remedies" defense still being raised by railroads in Federal Rail Safety Act cases.

Election of Remedies
After Track Department employee Thomas Ray reported a work related injury, the Union Pacific Railroad charged him with the late reporting of a false injury, conducted the usual show trial, and fired him. His union pursued a Public Law Board arbitration under the Railway Labor Act, and almost three years later the arbitrator reinstated Ray with no back pay.

Meanwhile, Ray had filed a FRSA Section 20109 whistleblower protection complaint and opted to go into federal district court. Union Pacific filed a motion for summary judgment, arguing the case should be dismissed because the union's RLA arbitration constituted an "election of remedies."

U.S. District Judge Robert W. Pratt rejected the Railroad's "unconvincing" arguments. He endorsed the ARB's Mercier decision and found it is entitled to Chevron deference. He also endorsed the Reed and Ratledge federal court decisions, ruling that an employee's "FRSA claims are not barred by the election of remedies provision of the FRSA merely because he elected to pursue an enforcement action under the RLA for rights that substantially arise under the collective bargaining agreement."

False and Late Injury Reports
Judge Pratt's well reasoned decision also is notable because it spells out how to analyze whether an employee's injury report is "false" or "dishonest" for FRSA purposes:

even assuming the employee was dishonest with the Railroad on one occasion or another, the relevant inquiry remains whether, at the time he reported his injury, he genuinely believed the injury he was reporting was work-related. . . the focus of the good faith requirement when reporting injuries is on the reporting itself, not on all of an employee's interactions with his employer. . . . Union Pacific's arguments that it had "ample basis to discipline" Ray and "acted reasonably in finding Ray guilty of late reporting and dishonesty" misses the mark. This is not a PLB matter but rather an action under the FRSA, which evaluates only whether Ray's filing of a work-related injury report was a contributing factor in the Railroad's adverse disciplinary decision. Indeed, even if dishonesty and late reporting comprised 99.9% of the reason Union Pacific discharged Ray, his FRSA actions would still be viable because his injury report could still have been "a contributing factor" in the disciplinary action.

This confirms the "in whole or in part, even to the slightest degree" causation standard of the FELA applies with equal force to the FRSA. And Judge Pratt stressed "contributing causation for purposes of the FRSA analysis is presumed in situations where the employee's protected activity and the adverse action are inextricably intertwined." And such is the case in false or late injury reporting situations: "if Ray had not reported the alleged work-related injury, Union Pacific would not have undertaken an investigation into either the honesty of Ray's statement about his injury or the timeliness of his injury report, and he would not have been terminated."

Bottom line? Under the FRSA, there is no such thing as "false" or "late" injury reports. When the railroad's decision to discipline is set in motion by an employee's reporting of an injury, FRSA causation is presumed. And managers who fire a worker because his injury report was "false" or "late" can be held personally liable for violating the FRSA. For the full text of Ray v. Union Pacific Railroad Co., click here.

ALERT: FRSA Trumps Railroad Attendance Policy Discipline!


It's official: railroad employees who follow their treating doctor's orders not to work cannot be disciplined for those absences, even if the absence is due to an off-duty medical condition. Why? Because Bala v. PATH now is the law of the land, having just been affirmed in full by the highest appeals tribunal in the U.S. Department of Labor, the Administrative Review Board. The ARB's ruling applies to railroads nationwide, and every OSHA Whistleblower office in the country now is required to enforce it.

A year and a half ago, Judge Timlin stunned the railroad industry when she ruled in Bala v. PATH:

the purpose of the FRSA is to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents. . . . in enacting the FRSA, Congress stated that 'employees should not be forced to choose between their lives and their livelihoods.' . . . After reviewing the FRSA's text and purpose, I find it clear that Section 20109(c)(2) exists not only to encourage employees suffering on-the-job injuries to report unsafe conditions to their superiors without fear of reprisal, but also to discourage sick or injured workers from returning to duty while their impairment poses a threat to the safety of railroad passengers and fellow employees. I thus find that Section 20109(c)(2) applies equally to treatment plans arising out of on-duty and off-duty injuries.

In other words, safety trumps discipline. PATH and the American Association of Railroads disagreed, and filed an appeal arguing that discipline trumps safety.I filed a brief endorsing Judge Timlin's interpretation of FRSA Subsection (c)(2), and the United States Solicitor of Labor weighed in with an amicus brief confirming that FRSA Section (c)(2) protects ALL medically impaired railroad employees who follow their doctor's orders not to work, even workers who are injured off the job or have a non-work related medical condition.

In response,the ARB's Decision fully endorses Judge Timlin's interpretation, holding: "Subsection (c)(2) of 49 U.S.C. 20109 affords railroad employees protection from discipline when following treating physicians' orders that stem from off-duty injuries." The ARB stressed that both the plain language of Subsection (c)(2) and the FRSA's legislative history mandates that conclusion. And the ARB emphatically rejected the AAR's argument that such an application of (c)(2) will interfere with the ability of railroads to discipline employees:

nothing in Section 20109 precludes an employer from disciplining an employee for excessive absences. The only limitation set out in (c)(2) is that an employee cannot be disciplined because he/she is complying with the orders of treatment plan of a treating physician. . . . The express statutory language set out in Sections (c)(1) and (2), as well as the legislative history reflecting Congress's broad concern over safety in the railroad industry and protection of injured railroad workers, makes clear that Congress did not intend to foreclose from protection railroad workers who "follow orders or a treatment plan of a treating physician" even when the injury they are being treated for occurred off-duty.

The bottom line is, if an employee notifies a railroad his treating doctor has ordered him not to work, the railroad cannot use that absence for disciplinary purposes. And it doesn't matter if the absence is due to sickness, an off-duty injury, or an on-duty injury. From now on, any railroad that disciplines employees for such absences will pay a steep price in FRSA damages and attorney fees. For all the briefs and decisions regarding Subsection (c), click here. For more information on all the elements of the Federal Rail Safety Act, go to Rail Whistleblowers Library.

The Filing Of A FRSA Complaint Is a VERY Protected Activity

Question: What is the surest way for a railroad to get hit with punitive damages?
Answer: Base a disciplinary charge on an employee's FRSA complaint.
Railroads that have tried this bone headed move are now 0-3, and OSHA has slammed them with punitive damages every time.

The latest example comes from Pan Am Railways. Subsection (a)(3) of the Federal Rail Safety Act declares that when a worker files a FRSA Complaint with OSHA (or cooperates with OSHA's investigation into a co-worker's FRSA complaint), it is a protected activity that cannot be used in whole or in part for disciplinary purposes. After reporting an ankle injury while stepping down from a train in a Yard, Jason Raye was charged with violating a safety rule. The usual kangaroo hearing was held during which he described how the ankle injury occurred. He was found guilty and disciplined.

Raye then filed a FRSA complaint with OSHA's Whistleblower Office in which the description of how his ankle was hurt differed somewhat from his testimony at the Company trial. Some manager then got the bright idea of charging him again, this time for lying to a government agency, a firing offense. Another hearing was held, after which the Company dropped the charge.

But the damage was done, and Raye amended his FRSA Complaint to include a subsection (a)(3) violation. OSHA agreed, and ordered Pan Am Railways pay $50,000 in punitive damages and emotional distress. OSHA's explanation for why punitive damages are mandated for subsection (a)(3) violations speaks for itself:

The acts of accusing an employee of lying to OSHA after he filed an FRSA complaint, charging him with violating safety rules that if he was found guilty of could result in his termination, and conducting trial proceedings, have a chilling effect on employees and would to dissuade others from asserting their rights under FRSA. Even if the charge is later dropped, as it was after the hearing in this case, that does not remedy this chilling effect, as the act of bringing the charge against an employee affects all of the Railroad's employees' willingness and ability to exercise their most basic rights under FRSA.

Once a FRSA allegation has been made to OSHA, it is OSHA's responsibility, not the Railroad's, to establish the truth of assertions made by both parties. Under these circumstances the Railroad's use of an internal, management run disciplinary hearing to establish facts that are the subject of a federal OSHA investigation is overreaching at best and interfering with a federal investigation at worst. Regardless of the Railroad's intent, such a heavy handed approach would clearly chill other employees from filing similar claims.

The bottom line for railroad managers everywhere? Don't even think about using a FRSA complaint for disciplinary purposes, unless you enjoy the prospect of paying punitive damages out of your own pocket. For the full text of OSHA's Merit Finding in Raye v. Pan Am Railways, Inc., click here. The other two subsection (a)(3) cases are Blocker v. Metro North Railroad, and Young v CSX Transportation.

Use Of Safety Rules To Discipline Injured Workers Warrants Punitive Damages

Every railroad has them. Vague safety rules that are triggered only when a worker reports an injury. In a blistering Decision, a veteran Administrative Law Judge spells out why the use of such rules mandate the award of Federal Rail Safety Act punitive damages.

Union Pacific employee Brian Petersen was leaning against his car in a company parking lot when the tire of a co-worker's car ran over his foot. When Petersen reported the injury, the Railroad charged him with safety rule violations and fired him. After a three day trial, Administrative Law Judge Pamela A. Lakes ordered the immediate reinstatement of Petersen along with $325,000 in make whole remedy damages. In the words of Judge Lakes:

the Railroad's safety rules are written in such a manner that anyone who is injured and reports it will have violated a least a part of one or more of them. For example, Rule 1.1.2 (Alert and Attentive) requires that employees be careful to prevent injuring themselves or others; Rule 70.1 (Safety Responsibilities) requires that employees be responsible for their personal safety and take every precaution to prevent injury to themselves; Rule 70.5 (Protection of Body Parts) prohibits employees from placing any part of their bodies in a position "where they might be struck, caught, pinched or crushed"; Rule 1.6 (Part 1, Careless of Safety) relates to a rules infraction by employees that "demonstrates a willful, flagrant, or reckless disregard for the safety of themselves"; and Rule 1.6 (Part 2, Negligent) precludes behaviors or actions by an employee that "cause, or contribute to, the harm or risk of harm to the employee." The Railroad charged Petersen with violating these rules because he "may have failed to take precaution to avoid having [his] feet run over. . . resulting in [his] sustaining a possible injury to [his] feet and back." Thus, these Rules in effect punish an employee for being injured. The Railroad cannot argue that Petersen was being disciplined for being injured as opposed to reporting the injury, because that is a distinction without a difference.

there would clearly be a chilling effect on the reporting of injuries if railroads were permitted to discipline employees for not avoiding injury, as it did here. . . . Even though I have handled multiple whistleblower cases since I began employment with the Office of Administrative Law Judges in 1994, I have never awarded punitive damages before. However, the actions by Union Pacific have been so egregious in this case, and Union Pacific has been so openly blatant in ignoring the provisions of the FRSA, that I find punitive damages are necessary to ensure that this reprehensible conduct is not repeated. Indeed, it would be difficult to envision a case that reveals a more blatant disregard for the whistleblower provisions of the FRSA than the instant case, which involves retaliation against an employee for reporting that his feet were run over while he was leaning against his car in a parking lot. The position taken by Respondent in the instant case is troubling, to say the least, and involves an egregious degree of culpability.

The Judge ordered Union Pacific to immediately reinstate Petersen and pay $325,000 in lost wages, emotional distress, and punitive damages. And so it goes, and will continue to go, for as long as railroads deny the reality of the FRSA. For the full Decision in Brian Petersen v. Union Pacific Railroad Co.,click here.