How Not To Settle FRSA Claims
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Federal Rail Safety Act claims under the jurisdiction of OSHA’s Office of Whistleblower Protection cannot be withdrawn or settled without the express written approval of OSHA, and the parties hereby acknowledge that the attached General Release has not been submitted to OSHA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.
As always, great post. I'm wondering, however, if in your experience you have ever had OSHA decline to approve a proposed settlement. In my current FRSA cases, the OSHA investigator has encouraged settlement discussions with what seems to be a concern only for removing the case from a crowded docket. I have the impression they would approve anything to make it go away. The info in your post is obviously very useful if the employee is not represented by counsel and wishes to open an FRSA claim after unknowingly settling the injury case. I'm interested to know how involved (if at all) the approval process would be when the person is represented.
Andrew:
OSHA will decline approval of a settlement agreement that contains a confidentiality clause, for the obvious reason that it would lock in the chilling effect of the retaliation instead of exposing and remedying it. In my experience OSHA has been cooperative when attorneys on both sides agree a settlement is fair, but if a worker is not represented by counsel I believe OSHA would scutinize any settlement agreement very closely to ensure it is fundamentally fair with appropriate remedies.
Charlie