Train Law Blog : Railroad Injury Lawyer & Attorney : Cahill Goetsch & Perry Law Firm : Railway Worker Injuries & Accidents

No matter what a railroad may try to tell you, a Federal Rail Safety Act claim under OSHA jurisdiction cannot be settled without the express written approval of OSHA. Here's why.

The FRSA itself states: "The rights and remedies in this section may not be waived by any agreement . . ." 49 USC 20109(h). And the regulations confirm that during OSHA's investigative phase, "the case may be settled if the Assistant Secretary, the complainant, and the respondent agree to a settlement." 29 CFR 1982.111(d)(1).

So what happens when there is a FELA General Release containing broad and unlimited language referring to the release of any and all matters? Can the railroad turn around and claim such a FELA Release waives any FRSA claims as well?

Short answer: no way. OSHA spells out what would happen:

If the parties do not submit their agreement to OSHA or if OSHA does not approve the agreement signed, OSHA must deny the withdrawal, inform the parties that the investigation will proceed, and issue Secretary's Findings on the merits of the case. The findings must include the statement that the parties reached a settlement that was either not submitted for review by OSHA or not approved by OSHA. 

Whistleblower Investigations Manual at Chapter Six, Section IV.D.4. So unless a FELA General Release specifically references a FRSA claim and has been approved by OSHA, it can not withdraw or bar any FRSA claim.

So what's a prudent attorney to do when a FELA Release has not been approved by OSHA? The best practice for all sides is either to exclude the FRSA entirely in body of the Release, or attach a rider to the Release along these lines:

Federal Rail Safety Act claims under the jurisdiction of OSHA’s Office of Whistleblower Protection cannot be withdrawn or settled without the express written approval of OSHA, and the parties hereby acknowledge that the attached General Release has not been submitted to OSHA and does not purport to waive any rights or remedies under the Federal Rail Safety Act.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

The damages for violations of the Federal Rail Safety Act just keep expanding. The latest record breaker goes against the Union Pacific Railroad: $175,000 in punitive damages and $100,000 for emotional distress, all for firing a conductor who reported a minor injury.

In addition to the immediate reinstatement, lost wages, and attorney fees ordered, this case is notable for the $100,000 in damages to compensate for the conductor's "distress, humiliation, depression, mental anguish, lessened self esteem, anxiety and embarrassment" resulting from the RR's actions. And also for the $175,00 in punitive damages, based on: the economic harm suffered by the employee; the fact the UP managers knew of the FRSA's prohibition against retaliation yet went ahead and retaliated anyway; and the UP's well established pattern of retaliation against employees who exercise their FRSA right to report work-related injuries.

So, hats off to Conductor Annen and her attorney for standing up and using the FRSA to expose the rottenness at the core of UP's management culture. For the full text of the Annen v. UP RR Merit Finding, click here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

If a railroad worker wins his Federal Rail Safety Act complaint, the railroad has to pay all his attorney fees. But if a FRSA complaint fails, the railroad cannot recover any attorney fees or costs against the worker.

Administrative Law Judge Adele H. Odegard's decision in Vason v. Port Authority Trans Hudson (PATH) explains why: unlike the NTSSA, the FRSA does not provide for any award of attorney fees on behalf of a railroad. So don't let a railroad threaten you with the prospect of paying their attorney fees: it can never happen, even if your FRSA complaint fails.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Instead of naming the railroad, workers are free to name a manager as the defendant in a Federal Rail Safety Act complaint. And there are good reasons for doing so.

When a manager is singled out as illegally retaliating against workers, it is a form of public "shaming" that does not help his future career prospects. It also raises the unsettling potential for that manager to be held personally liable for any economic damages, thus making him think twice before retaliating again. And it creates an official record that can be used as a basis for a FRA disqualification of that manager from working in the railroad industry. For an explanation of how to disqualify such managers, click here.

So managers who retaliate should be prepared to suffer all the negative consequences of being personally named as the defendant in a FRSA complaint.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In an important decision clarifying the broad scope of adverse action under the Federal Rail Safety Act, Judge Theresa C. Timlin confirms that the mere act of filing of charges against an injured railroad employee is an unfavorable personnel action sufficient to support a FRSA violation.

The facts in Vernace v. PATH Rail are: after a signal tester reported an injury, the Railroad sent a disciplinary charge letter scheduling an investigation; however, the investigation hearing was never held, and the Railroad eventually dropped the charges.

The worker contended that the filing of charges scheduling a disciplinary hearing is in and of itself an adverse unfavorable personnel action, whereas the Railroad argued no adverse action took place because the employee was not actually disciplined in any way. OSHA ruled in the worker's favor, and then a full trial was held before Administrative Law Judge Timlin.

Judge Timlin began her analysis by pointing out that whistleblower laws such as the FRSA "consistently have been recognized as remedial statutes warranting broad interpretation and application." Indeed, the ARB stresses that the list of prohibited activities is quite broad, and includes reprimands (verbal or written), written warnings, and counseling sessions where the potential for future discipline is implied. And in fact the ARB holds that the scope of adverse action under whistleblower laws is even broader than the scope of adverse action under the Supreme Court's Burlington Northern v. White Title VII standard.

In ruling that the charge letter alone is a violation of the FRSA, Judge Timlin stressed that such action is not trivial:

an employer should never be permitted to deliberately single out an employees for unfavorable employment action as retaliation for protected whistleblower activity. . . .

The filing of charges against an employee is not de minimis harm. Those charges are the first step in a disciplinary process that has the potential to culminate in a warning, suspension, or termination. Once charges have been sustained and discipline meted out, the employee is then susceptible to a higher degree of punishment if he or she commits a subsequent offense. This is likely to have a chilling effect on reasonable employees, who may be dissuaded from filing injury reports for fear of being charged with safety violations and potentially being disciplined. Indeed, Complainant employee said she considered the charge letter and hearing to be very serious because she was afraid that money, lost time, and promotions were at risk due to the charges against her. . . .

The Railroad's contention that no adverse action occurred in this case because Complainant was never actually disciplined in contrary to the law. I find the filing of charges against Complainant which carried the potential for future discipline was an unfavorable personnel action.

Vernace v. PATH Rail at pages 24-27. For the full decision, click here. The moral is, once a railroad serves an employee with a charge letter, it cannot escape a FRSA violation even if it cancels the hearing and drops the charges.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The long wait is over. The Administrative Review Board has officially laid the railroad's bogus "election of remedies" defense to rest. In Mercier v. Union Pacific Railroad Co., the ARB has declared once and for all that rail workers are entitled to simultaneously pursue their rights under the Federal Rail Safety Act while also defending themselves under their collective bargaining agreement.

This confirms a worker does not waive his right to pursue a FRSA whistleblower complaint just because he also invokes his CBA right to contest a railroad's decision to impose discipline.  The best way to conceptualize this is to imagine two parallel tracks that never intersect or interfere with the other. On one track the union pursues the RLA arbitration rights of its members. On the other track the worker is free to pursue his FRSA whistleblower protection rights.

All good things come to those who wait. For a list of prior blog posts on the election of remedies issue, click here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

OSHA's Whistleblower Office has issued a revised and updated Whistleblower Investigations Manual that applies to complaints under the Federal Rail Safety Act. The Manual explains the process from start to finish, and workers and attorneys will find it useful to orient themselves as to the steps involved in FRSA complaints.

Two points of note: the Manual confirms OSHA investigators are to provide a copy of the railroad's response to the complainant, and confirms OSHA takes the position that the FRSA "election of remedies" subsection "does not preclude a FRSA complaint where an employee has pursued a grievance and/or arbitration pursuant to the employee's collective bargaining agreement."

For the complete text of the new Whistleblower Investigations Manual, click here. Tip: the Manual is very lengthy and covers a dozen different whistleblower laws, so use the Table of Contents to identify relevant sections to print out.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 A leading U.S. Circuit Court of Appeals has clarified when rail workers can recover damages for outrageous conduct by their employer railroad. Building on two cases that I handled (Metro North Railroad v. Buckley in the U.S. Supreme Court and Higgins v. Metro North Railroad in the Second Circuit), the Second Circuit Court of Appeals has declared that a worker can recover for a purely emotional injury (involving no physical impact) only if he or she was within a "zone of danger of physical impact."

 Goodrich v. LIRR involved an electrician who sought to recover under the Federal Employers Liability Act (FELA) for his emotional distress after a fellow worker intentionally posted his HIV positive status on a company bulletin board. The Circuit Court ruled that under the FELA the electrician could not recover because there was no physical impact or threat of physical impact involved. So no matter how outrageous the conduct, unless there is some physical impact or imminent threat of serious physical impact, under the FELA a railroad worker has no recovery for emotional distress.

But that is not the case if the worker is protected by the Federal Rail Safety Act. Under the FRSA, physical impact is not necessary for the recovery of emotional distress damages, and a worker can recover for any emotional distress resulting from a railroad's violation of his FRSA rights. And punitive damages up to $250,000 also are recoverable under the FRSA for outrageous conduct by the railroad.

So, even if a worker has no claim under the FELA for emotional distress, he still may be able to recover emotional distress damages under the FRSA. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Fighting Federal Rail Safety Act claims just got a lot more expensive for railroads. Two recent appellate court decisions confirm that---no matter how small a worker's FRSA economic damages may be--the railroad has to pay the FULL amount of the worker's attorneys fees and costs. The appellate decisions apply to FRSA cases in the administrative law system as well as in federal court.

The Second Circuit Court of Appeals is just one step below the United States Supreme Court. In an opinion directly applicable to FRSA cases, the Second Circuit held there is no such thing as a "de minimis" award in a fee-shifting case. In Millea v. Metro North Railroad, the worker succeeded on one of two FMLA counts and recovered $615 in wages. Instead of awarding Millea's attorney $144,000 in attorney fees, the trial judge only awarded $204, finding that the award was "de minimis" and had "no public policy significance." Declaring that to be "legal error" and an "abuse of discretion," the Second Circuit reversed.

The Second Circuit stressed that by enacting fee-shifting provisions in statutes such as the FRSA, Congress "has already made the policy determination that such claims serve an important public policy purpose disproportionate to their cash value." As such, there is no such thing as a "de minimis" recovery under the FRSA. Such

claims are often small-ticket items, and small damages awards should be expected without raising the inference that the victory was technical or de minimis. . . . Especially for claims where the financial recovery is likely to be small, calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery.

Similarly, the administrative appeals court for the FRSA, the Administrative Review Board (ARB), confirms that when a worker prevails on any part of his claim, he "is entitled to all costs and expenses including attorney's fees reasonably incurred in bringing his complaint." And the ARB flatly refuses to reduce an attorney's fee award because the amount of the fee is larger than the wages recovered by the worker. Why? Because to do so would chill attorneys from taking cases where the economic losses are small in relation to the time expended by the attorney. Thus, in Furland v. American Airlines, the worker was awarded $915 in lost wages and $39,000 in attorney's fees, and the ARB refused "to reduce the attorney fee award based on its disproportionate size or because the worker only prevailed on part of his claims." So even when a worker only wins part of his FRSA claim, the railroad still has to pay the full amount of attorney's fees, no matter how small the lost wages may be.

Bottom line? The reflexive denial of FRSA claims is no longer a cost-free option for railroads. Every worker's attorney can rest easy in the knowledge that the more a railroad drags out a FRSA case, the more the attorney will get paid. And railroads must be prepared to pay ALL the fees for the lawyers on BOTH sides, even in small damage cases where only one part of the claim succeeds.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It's one of the hoariest acts in the railroad repertoire of retaliation: first, invent rules setting an arbitrary deadline for the reporting of injuries, and then use the threat of discipline under those rules to discourage the reporting of injuries. Classic examples of absurd reporting rules are Metro North Railroad's "all injuries must be reported immediately" and CSX Transportation's "all injuries must be reported prior to the end of the shift." Such arbitrary rules outlaw entire categories of FRA reportable injuries.

No more. Under the Federal Rail Safety Act, the reporting of injuries cannot be used as the basis for discipline. And because any discipline for "late reporting" is necessarily based on the reporting of an injury, it is a prima facie violation of the FRSA. And railroads who continue to discipline for "late reporting" are getting slammed with record high punitive damages. See, for example, Harvey v. Union Pacific Railroad.

So, thanks to the FRSA, there is no longer any such thing as the "late reporting" of an injury. The railroad repertoire of retaliation just keeps getting smaller and smaller.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There has been a flurry of Federal Rail Safety Act decisions in the past few weeks, all positive for workers, and all demonstrating a trend toward higher punitive damage awards.

Pfeifer v. Union Pacific Railroad concerns retaliation against a conductor who reported safety hazards. After he reported rough spots on the railroad track, he was subjected to increased field testing and ultimately suspended without pay. OSHA found that such conduct has a real chilling effect on the willingness of workers to report safety issues, and ordered Union Pacific to pay $100,000 in punitive damages for its "outrageous behavior and callous disregard for the rights of its employees."

Newman v. Union Pacific Railroad also concerns retaliation against a conductor who reported safety concerns. He was pulled out of service and permanently dismissed from service in retaliation for taking safety seriously enough to report safety hazards he noted in the right-of-way. OSHA ordered Union Pacific to pay over $250,000 in make whole damages, including $150,000 in punitive damages.

Wallis v. Burlington Northern Sante Fe Railway concerns a hostler who reported an injury and was subjected to the Railroad's infamous Personal Performance Index Point Distribution (PPI) policy, which assigns disciplinary points to injuries that are FRA reportable. The hostler was suspended without pay for 30 days, and OSHA found that Union Pacific's enforcement of its PPI policy for reporting a work-related injury violates the FRSA. OSHA ordered the Railroad to pay $150,000 in punitive damages, which reflects the FRSA's antipathy to system-wide policies of retaliation, and $125,000 for "mental pain and suffering," which reflects the solid medical evidence documenting the hostler's emotional distress.

Harvey v. Union Pacific Railroad concerns a locomotive engineer who reported an injury two months after it occurred. Despite the fact he was "a dedicated employee who had no history of prior poor performance or misconduct," Union Pacific terminated him for "failing to report an injury in a timely manner." However, OSHA found the engineer "was reasonable in delaying reporting his injury because he initially did not believe he had been so severely injured as to warrant putting himself at risk of retaliation for reporting the injury." The Railroad was ordered to pay $150,000 in punitive damages "for its egregious and willful behavior and for its disregard for the rights of its employees under FRSA." OSHA also ordered the Railroad to pay $75,000 for the "undue pain and suffering" it caused.

For OSHA's press release about the three Union Pacific cases, click here.  Over the past two years FRSA punitive damage awards have progressed from $75,000 to $100,000 to $125,000 and now to $150,000. But the railroads could care less. They have continued doing business as usual, or rather violations as usual, and their management culture of retaliation remains intact. If OSHA wants the railroads to take the FRSA seriously, it will have to increase punitive damage awards to the maximum allowed by law, and impose system-wide injunctions against every railroad's retaliatory policies and patterns of conduct.

But the message from these recent cases is clear: the path to six figure punitive and emotional distress damages is starting to get very well-trod, and promises to expand into a highway routinely traveled by thousands of workers if railroads continue to ignore the FRSA's mandate to treat the reporting of injuries and safety concerns as discipline-free events.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

While we await the Administrative Review Board's official burial notice for the railroads' bogus "election of remedies" argument, here is another nail in the coffin of that dead Federal Rail Safety Act defense: Thompson v. Norfolk Southern Railway Corp., where yet another Administrative Law Judge explains why "the FRSA does not prevent an individual who has appealed discipline pursuant to a collective bargaining agreement from pursuing a complaint under the FRSA." If anybody at the ARB is listening, hasn't this wake gone on long enough? Time to lay this issue to rest once and for all.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As Yogi Berra would say, "It's starting to get late early out there" for the Norfolk Southern Railway. OSHA has blown the whistle on NS's campaign of retaliation against injured workers, and the Federal Rail Safety Act awards and punitive damages just keep piling up.

In the latest, Nelson v. Norfolk Southern Railway, OSHA's investigation confirmed that employees "are reluctant to report an injury and/or illness, fearing that they will be targeted and eventually terminated from employment." Which explains how NS has kept its injury rates low enough to receive "the prestigious E.H. Harriman Rail Safety Gold Medal Award for 22 consecutive years." Only in the railroad industry could managers receive a safety medal for suppressing the reporting of injuries.

OSHA notes the "chilling effect" of NS's "reckless disregard for the law" and points to how NS "has been cited previously by the Federal Railroad Administration for harassing and intimidating employees from reporting injuries" in violation of FRA regulations. OSHA concludes that NS's "disregard for Complainant's rights under FRSA warrants punitive damages" in the amount of $75,000, plus another $20,000 for emotional distress and $26,000 in attorney fees.

When it comes to railroads like the NS, all that glitters is not gold.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Once again, OSHA has slammed Metro North Railroad with punitive damages for disregarding the Federal Rail Safety Act rights of its employees. This time it is for using prior injuries to deny promotions, and the resulting punitive damage award is $125,000.

Like many railroads, Metro North has a policy and practice of considering an employee's history of reporting injuries when evaluating that employee for a promotion. Here, ironworker Bill Ordner passed all the hurdles for a locomotive engineer job, but then, after the final background check phase, was handed a letter denying him the promotion with no explanation. He had reported injuries within the prior three years, and when Metro North refused to provide OSHA's Whistleblower Office with the information on which the denial was based, OSHA drew a negative inference against Metro North and concluded that Ordner's reporting of injuries was a contributing factor in Metro North's denial of the promotion.

Here are OSHA's words of warning to railroads nationwide:

Metro North automatically assigns points to an employee's personnel record, thereby subjecting the employee to other adverse consequences such as disqualification for promotion or craft transfer, solely for lawfully reporting a work-related injury. Metro North's enforcement of this policy, to the extent that it punishes employees for reporting work-related injuries, on its face violates FRSA. Such practices produce a chilling effect on reporting injuries in the workplace, jeopardizing employee safety. Furthermore, Metro North's refusal to provide OSHA with certain documents requested during this investigation is consistent with its conduct in past investigations. Metro North's pattern of refusal to provide OSHA with requested information during FRSA investigations demonstrates willful disregard for the law and the rights of its employees.

OSHA's make whole remedies include: ordering the Railroad to promote Ordner to the position of locomotive engineer with a seniority date of November 24, 2008 and full back pay; $125,000 in punitive damages; another $15,000 in emotional distress and attorney's fees; and the posting of the FRSA Notice to Employees in all 120 stations on the Railroad.

When will railroads learn that the FRSA has made the reporting of injuries a neutral, penalty-free event? For the full text of the Merit Finding, click here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link