Most subway and bus workers probably don’t know it, but there is a federal law that protects them from any retaliation for reporting safety hazards in their workplace. It’s called the National Transit Systems Security Act, or NTSSA, and is a twin brother to the better known Federal Rail Safety Act whistleblower law protecting railroad workers. There have been very few decisions under the NTSSA, no doubt due to a pervasive culture of intimidation and retaliation that discourages whistleblowing by subway and bus workers. But that may change, given a landmark decision confirming the broad scope of the NTSSA, Janathan Harte v. New York City Transit Authority.

The NTSSA prohibits any public transportation agency from firing, demoting, suspending, reprimanding, or discriminating “in any other way against” employees for:

  • reporting a hazardous safety or security condition
  • refusing to violate or assist in violating any federal law, rule, or regulation relating to public transportation safety or security
  • providing information to any investigation regarding violations of any federal law, rule, or regulation relating to public transportation safety or security
  • providing information regarding the fraud or waste of public funds relating to public transportation safety or security
  • refusing to work when confronted by a hazardous safety or security condition related to performance of their duties, under certain conditions

The text of the NTSSA clearly protects employees where ever they work, but for the past nine years the largest subway system in the nation, the New York City Transit Authority, has pretended the NTSSA only applies to terrorist activity at passenger locations such as platforms and stations, and not to the shops and tracks where employees work. That dangerous fantasy is now exploded. A federal Administrative Law Judge has definitively declared that the scope of the NTSSA is not limited to terrorism but also includes employee work places, and thus employee “reporting of hazards that present a threat to employee safety” is protected activity under the NTSSA.

Janathan Harte worked at the NYCTA’s Linden Shop. After his internal complaints of safety hazards were ignored, he reported the hazards to PESH, the New York state agency that enforces OSHA standards in NYCTA work places. Two PESH inspectors then conducted a surprise inspection of the Shop. Harte and the Superintendent of the Shop accompanied them. When the inspectors came upon a drill press with no safety guards on it, they asked the Superintendent if the press was operational. The Superintendent said no, but Harte then walked over and turned on the machine, saying his co-workers do in fact use it. The Superintendent immediately blew up and threatened to take Harte off the overtime list and reassign him to “the rack.” After being warned by the PESH inspectors he could not retaliate against Harte, the Superintendent did not actually alter Harte’s overtime or job assignment. But the next day the Superintendent told Harte’s supervisors Harte was to blame for all the disruption resulting from the remedial actions PESH required after the inspection.

The issue at trial was, did the NTSSA extend to employee work places, and did the Superintendent’s threats constitute prohibited adverse action? After hearing all the evidence, the Judge ruled the NTSSA does indeed protect employee work areas such as shops, and that “a standalone threat, without a tangible loss of benefits, is sufficient to constitute an adverse action” under the NTSSA.

The NTSSA prohibits any adverse actions related to a protected activity such as reporting safety hazards, and a supervisor’s threats to alter the terms of an employee’s employment (wages, job assignments, etc) are adverse even if the threat is not carried out. This is because, given “the power imbalance that comes with the supervisor-subordinate relationship,” such threats “could reasonably dissuade workers from exercising their whistleblower rights.”  Accordingly, the Judge ruled the NYCTA did indeed violate Janathan Harte’s NTSSA right to report safety hazards, and awarded him damages.

The NTSSA is a very powerful law with the following “make whole” remedies:

  • an order voiding any retaliatory discipline
  • an order reinstating the worker with benefits and seniority unimpaired
  • an award of full back pay with interest
  • an award for any out of pocket expenses resulting from the retaliation
  • an award for emotional distress
  • a punitive damages award up to $250,000
  • an award for the attorney’s fees and costs of the worker’s own attorney

So, the message to subway and bus workers everywhere is, take Harte! Know that you have the right to report safety hazards in your workplace and that you will be protected from retaliation when you do. Don’t let any reluctance to blow the whistle on safety hazards endanger the lives of your co-workers or the public. Do the right thing, and you will be protected. Here is the full Harte v. New York City Transit Authority Decision. For more on the standards that apply to subway and bus whistleblowers, go to the free Rail Whistleblower Library.