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

At 10 PM this Sunday on Fox News Channel, "Geraldo At Large" will examine how to improve rail safety. I will be interviewed about rail management's culture of retaliation and how the new FRSA Whistleblower law will change that culture. George Gavalla, a former Federal Railroad Administration Head of Safety (and BRS union rep), will address the lack of infrastructure funding for passenger rail. Here's a chance for rail labor to broadcast the message that rail safety will only improve when management abandons its culture of retaliation against workers who report safety violations and injuries. So spread the word, and check it out!

• Email This
• Print
• Comments
• Trackbacks

Talk about sending a message! OSHA has blown the whistle on Metro North Railroad's culture of retaliation. Big time. No longer do railroad workers have to fear reporting an injury or a safety violation. The days when railroad managers could retaliate with impunity are officially over. Every railroad in the country is now on notice that retaliation by managers will lead to punitive damages.

Under the new Federal Rail Safety Act (FRSA), railroad workers are protected from retaliation when they report any injuries or safety violations. These four workers turned to my railroad law firm for help when Metro North retaliated against them for reporting their railyard injuries: Ralph Tagliatela of West Haven, CT (station custodian), Larry Ellis of the Bronx, NY (car cleaner in GCT) Andy Barati of Waterbury, CT (trackman), and Anthony Santiago of Hopewell Junction, NY (shop electrician). We filed FRSA complaints that have resulted in the following remedies: $75,000 in punitive damages to each employee (total of $300,000); up to $10,000 in compensatory damages (total of $40,000); all lost wages with 6% interest; expungement of discipline records; barring Metro North from using injury sick days or injury reports to bar transfers or promotions; forcing Metro North to give each of its employees a copy of the OSHA Whistleblower Fact Sheet explaining their rights under the FRSA; and attorney's fees. In order to counter the chilling effect of Metro North's past conduct on all employees and to ensure protection from future retaliation, these complainants are posting OSHA's official Merit Findings here in order to show how OSHA enforces the FRSA rights of rail employees: Tagliatela Ellis Barati and Santiago. For the FRSA Fact Sheet click here.

In the first wave of FRSA whistleblower complaints, this group stands out both for the variety of the management retaliation and the strength of OSHA's response. As the railroad lawyer for all four employees, I can attest to the savvy of the OSHA investigator, who promptly launched her investigations and didn't let up until she had a thorough grasp of Metro North's culture of retaliation against employees who report injuries and safety concerns.

OSHA issued a press release that included this statement: "Railroad employees have the right to report occupational injuries and illnesses without fear that doing so will negatively affect their jobs, their health or their income," said Jordan Barab, acting U.S. assistant secretary of labor for safety and health. "Retaliating against employees for exercising this basic, legally protected workplace right is unacceptable."

On Metro North, OSHA's whistleblower investigators quickly ran into the stonewall of an entrenched management culture in which retaliation against employees is expected and rewarded. And Metro North's own conduct in response to the FRSA complaints was the ultimate proof of that problem: Metro North flatly refused to cooperate with OSHA's reasonable demands for documents while asserting ridiculous interpretations of the FRSA's broad remedial language. See this earlier blog entry where I predicted that such stonewalling will result in punitive damages.  These cases prove my point: the shortest distance between a FRSA complaint and a punitive damages award is for railroads to tell OSHA to go pound sand. The only thing that will get pounded is the railroad.

So for railroads across the country, the days of care-free retaliation are over. Refusing to change your ways is not an option. This action by OSHA proves the FRSA has sharp teeth that will shred recalcitrant railroads to pieces, while costing them real money. The message is clear: stop retaliating against employees, or get out your check book.

For more information on how the FRSA protects railroad workers, check out trainlawblog.com and trainlaw.com.

• Email This
• Print
• Comments
• Trackbacks

The opportunities for railroad supervisors to harass injured workers just keeps getting smaller and smaller. The Federal Railroad Administration has now put a stop to the practice of railroad supervisors accompanying injured employees into medical exam rooms. The FRA issued a Notice of Interpretation declaring it to be a violation of federal regulations for a supervisor to be in a medical exam room with an injured employee (the only exception being if the worker is unconscious or has freely invited the supervisor in). FRA Notice

The FRA requires every railroad to adopt an Internal Control Plan confirming that any harassment or intimidation which discourages employees from reporting injuries will not be tolerated. 49 CFR 225.33(a).  Despite that requirement, the FRA Guide for Preparing Accident Reports acknowledges that many railroad supervisors engage in practices that circumvent the reporting of injuries, including harassing and disciplining employees who report injuries. Go to FRA Guide p.8

One of the ways supervisors try to make an injury non-reportable is to go into the medical exam room where they can pressure the employee or influence the extent of medical treatment. Those days are over. Now, it is a patent violation of FRA anti-harassment regulations "when a railroad supervisor accompanies an injured employee into an examination room." And that is on top of the protection given by the Federal Railroad Safety Act, which prohibits supervisors from interfering with the medical treatment of injured employees. 49 USC 20109

So employees and union reps, now hear this: when supervisors want to go into the examining room, bar the door! And if a supervisor barges in anyway, file a complaint with the FRA for a violation of 49 CFR 225.33(a) and then file a complaint with OSHA's Whistleblower Office for violation of the FRSA, 49 UCS 20109(a)(4) and (c). Under these new railroad laws, the fines, penalties, attorney's fees, and even punitive damages that result will put a stop to that particular form of railroad intimidation.

• Email This
• Print
• Comments
• Trackbacks

After a week long trial, a federal court jury in Hartford, Connecticut, has issued a verdict finding that Metro North Commuter Railroad violated the Family Medical Leave Act when it denied its employee his right to take FMLA absences protected from discipline. The worker is a Gulf War veteran with combat related PTSD who has the right to take intermittent leave to deal with the unforeseeable effects of that serious medical condition. His supervisor's repeated attempts to discourage him from taking FMLA absences escalated into a loud confrontation when the supervisor shouted, "Bid out now or I will find a way to fire you!" This precipitated a major panic attack in the employee, requiring him to take FMLA leave for the rest of that day and the next. The supervisor recorded those leaves as FMLA, but then two weeks later filed disciplinary charges after altering the attendance payroll records to change those days into unprotected non-FMLA absences.

By declaring Metro North violated the FMLA, the jury's verdict exposes Metro North to paying hundreds of thousands of dollars in attorneys fees and costs generated by the lawyers on both sides during two and a half years of federal court litigation. This is the first FMLA case to go to trial against Metro North, and if Metro North's hostility toward the FMLA continues it certainly will not be the last.

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

Need more proof that retaliation doesn't pay? Check out this scenario. Workers raise safety concerns with their carrier and OSHA. Carrier files a defamation lawsuit against the workers. Workers file Whistleblower complaint with OSHA. OSHA investigation finds lawsuit was in retaliation for the workers' protected activity, and PRESTO! the carrier has to pay $7.8 million in compensation and attorneys fees.

And to top it off, OSHA orders the carrier to withdraw the lawsuit and give all its employees notice of their Whistleblower rights. Read about it here. The carrier this time happened to be an airline, but the same scenario would apply to a railroad carrier arrogant enough to do the same to its workers. And we all know there is no dearth of arrogant railroad managers out there who think they have a license to retaliate against employees who dare to raise safety and injury concerns. So get ready for a flurry of tough orders against rail carriers, now that the first wave of OSHA investigations under the relatively new Federal Railroad Safety Act are coming to a head.

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

Q: What is the quickest way for a railroad to end up with a punitive damages Order against it?

A: Refuse to cooperate with an OSHA Federal Railroad Safety Act investigation.

Some railroads have decided to play cute with OSHA by refusing to produce documents on the ground that the FRSA does not give OSHA subpoena power. Sure, OSHA may lack explicit subpoena power under the FRSA, but railroads who think they can refuse to provide OSHA with documents as a result better think again. Why? Because OSHA has the ultimate power of "drawing an adverse inference."

Case in point. Metro-North Railroad has a dozen FRSA complaints against it. When OSHA met with the representatives of all the unions on Metro North, they told OSHA that virtually all employees who report an injury to Metro-North are subjected to some form of discipline. If true, this would indicate a systemic violation of the FRSA, with punitive damage implications.

So naturally OSHA wanted to investigate. OSHA sent a letter to Metro-North Deputy General Counsel Carol Sue Barnett with a list of the 297 injuries reported by Metro-North employees from July 2007 to July 2008, and asked "how many of these incidents resulted in charges being filed against the injured employee by Metro-North"? OSHA also asked for a copy of any disciplinary notices.

Here is Metro-North's response: "after carefully reviewing the statutory scheme, we have concluded that OSHA lacks authority to require the production of specific documents and/or the compilation of information." Translation: "Go pound sand OSHA, you don't have any subpoena power over us and you can't force us to help you establish a basis for punitive damages against us."

Big mistake. On March 23, 2009, Region I Regional Administrator Marthe Kent and Region II Regional Administrator Robert D. Kulick jointly sent a letter to Metro-North, and it didn't pull any punches: 

Because you have refused to respond to OSHA's request, we intend to proceed with our investigation. Without documents from Metro-North, our determinations in these cases will be made on the basis of evidence obtained from the complainants. Thus, your refusal to supply the requested information and failure to cooperate with this investigation may lead OSHA to draw an adverse inference against Metro-North. Moreover, OSHA has authority to impose punitive damages in cases where it finds reckless or callous disregard for federally protected rights, or intentional violations of federal law.

So OSHA now has put railroads on notice: refuse to cooperate, and OSHA will draw an adverse inference that will be fatal to any FRSA defense. Reliance on OSHA's lack of subpoena power will result in OSHA accepting all the complainant's allegations as true and applying every possible adverse inference against the railroad. This almost certainly will lead to a finding of systemic violations and an Order for punitive damages against the railroad.

So, OSHA has no FRSA subpoena power? No problem! OSHA simply will unleash the devastating power of adverse inferences against recalcitrant railroads. And as a result, railroad managers will have their heads handed to them on a punitive damages platter of their own making.

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

Looks like the Federal Railroad Safety Act  is just the beginning of a new wave of whistleblower protection statutes. The combination of a whistleblower friendly Obama Administration and the worst breakdown of financial regulation in decades is sure to result in a major expansion of whistleblower protection laws, and the legal press is taking notice.

In this session Congress is considering additional protections for federal employees , and another bill (the Private Sector Whistleblower Protection Streamlining Act) would establish a coherent system for protecting private-sector employees from retaliation when they report violations of law or threats to health and safety. A common element in these new whistleblower laws is that they give employees the right to go into federal district court to litigate their retaliation claims before a jury.

Sound familiar? So it does indeed look like the Federal Railroad Safety Act is forcing the railroad industry to blaze the trail that other private industries soon will be following.

• Email This
• Print
• Comments
• Trackbacks

Here's stark confirmation that the cost of retaliation is punitive damages and broken management careers.

A jury in Newark, New Jersey, just found that the top manager in the NJ Transit Police Department, Chief Joseph Bober, retaliated against female officer Theresa Frizalone after she complained about discrimination. The jury awarded her $1.5 million in damages (with another $500,000 in attorney fees to come). $1 million of that is for punitive damages to send a message to the Railroad that such retaliation is totally unacceptable in our society and will not be tolerated by juries.

And what happened to Chief Bober? The day after the verdict, Bober was no longer working for NJ Transit. He had been Chief since 2002 and had been earning $159,000 a year. All that gone with a jury's finding of retaliation. So here's my question to managers like Bober: Is it worth it? Is whatever twisted satisfaction you gain from retaliating against your employees worth destroying your career while forcing your railroad to pay millions in punitive damages?

Unless railroad managers start getting it, such verdicts are only going to increase. The Federal Railroad Safety Act, 49 USC 20109, prohibits retaliation against employees who report injuries or complain about safety or security issues, and juries are free to award punitive damages against managers who violate that new law. So railroad managers are now on notice, and the choice is theirs to make. They can put their careers at risk by retaliating, or they can respect the rights of their employees to engage in activities protected under the FRSA.

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

Talk about leveling the playing field. OSHA's FRSA Whistleblowers have sent another powerful message to rail management: sorry guys, but the days of business as usual are officially over. Supervisors are no longer free to retaliate at will against employees who raise safety concerns.

It all started when a Union Pacific Railroad Company welder performing work on adjacent railroad tracks asked for a lookout and tools to make the job safer. His reward? Instead of a thank you for trying to be safe, his supervisor abolished his job, forcing him to increase his daily commute by 131 miles and taking him away from his family for extended periods of time.

The welder filed a whistleblower complaint under the Federal Railroad Safety Act, and OSHA's investigation concluded the Railroad's abolishment of the position was illegal retaliation. In so ruling, OSHA's regional administrator stated a simple principle that will reverberate throughout the railroad industry:

"A supervisor does not have the right to abolish a job position because he becomes annoyed by a worker voicing safety concerns."

Wow. Amen and Hallelujah, brother.

But that's not all. OSHA ordered the Railroad to reassign the welder to his former position, reimburse him for his travel expenses, and pay compensatory damages for his personal hardship. And to top it off, the Railroad was ordered to provide whistleblower rights information to all its employees. For the OSHA Press Release, click here.

So now it is getting very real for the railroads. The FRSA has taken away the right of managers to retaliate at will against employees who get under their skin by reporting injuries or raising safety concerns. From now on, any railroad arrogant enough to ignore the FRSA will be forced to pay dearly for it.

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