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

The Federal Rail Safety Act prohibits a railroad from "discriminating in any way" against an employee who engages in the protected activity of raising a safety concern or reporting an injury. Such discrimination can take many forms, but two recent decisions highlight a classic example: namely, treating a worker differently from other similarly situated workers.

In Gunderson & Peterson v. BNSF Railway Co., AL J Paul C. Johnson, Jr. confirms that the FRSA prohibits a railroad from singling out for discipline an employee who engages in protected activity while ignoring similarly situated employees. Peterson was fired for accessing certain personal information relating to other employees, and Gunderson was fired for using "rough language" while talking to a supervisor. But Judge Johnson denied summary judgment because the Railroad "presented no evidence that it has terminated other employees for similar behavior." As such, the Railroad could not prove by "clear and convincing evidence" that it would have taken the same action even in the absence of the protected activity.

The facts of Infermo v. New Jersey Transit Rail Operations, Inc. are indeed classic. Infermo and his co-worker Gelmi are walking on ballast along the right of way. Both stumble in a washed out area, but only Infermo falls and is injured. He reports the injury, and is disciplined for violating the railroad's absurdly vague safety rules ("Employees must be aware of their surroundings . . . Employees must be alert and watch where they are walking"). His co-worker is not disciplined, nor are the railroad managers responsible for allowing the hazardous condition to exist.

The Railroad argued it legitimately disciplined Infermo because he did in fact violate those safety rules, but in denying summary judgment Senior U.S. District Judge Stanley Chesler explained why a FRSA jury would be entitled to reject that articulated reason:

his work partner [Gelmi] was walking along the same allegedly hazardous path and would have presumably, according to NJT's rationale for disciplining Infermo, failed to avoid the same tripping hazards. Indeed, Gelmi testified that he, too, lost his footing on the right of way but, unlike Infermo, was able to steady himself and avoid falling. Gelmi was not charged with any safety violations, nor required to attend any safety counseling. Infermo points out that the only difference between his conduct and Gelmi's conduct on the day in question is that Infermo suffered an injury whereas Gelmi did not. This evidence, the Court finds, casts doubt on NJT's articulated legitimate reason and would permit a jury to disbelieve it.

So the message is clear: unless a railroad disciplines everyone whose actions or inaction contributed to the injury incident (including managers), it can not single out the injured worker for discipline without violating the FRSA and inviting a jury to impose punitive damages.

Call me crazy, but there is an alternative: don't discipline anyone. Instead, take all the energy spent on disciplining the injured worker and redirect it toward identifying and correcting the causes of the hazardous condition so it will not injure again. That would truly promote safety while completely avoiding hefty FRSA damages. Just a thought.

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Every year since 1913, the railroads with the lowest number of injuries reported to the FRA have been awarded the E.H. Harriman Memorial Safety Awards. No more. The rail industry has announced that after the awards ceremony in May 2012, the E.H.Harriman Awards will be discontinued.

But when it comes to rail safety, it would be a real shame not to give credit where credit is due. Fortunately, the criteria for a new rail safety award is now at hand. And so trainlawblog is pleased to announce the first annual P.U. Harassment Award. The prestigious P.U. Harassment Award is based on data compiled by OSHA's Office of Whistleblower Protection (and obtained through the Freedom of Information Act), and honors the railroad that has generated the highest number of Federal Rail Safety Act retaliation merit findings.

In addition to highlighting the callous disregard of railroads for the rights of its employees, the P.U. Harassment Award celebrates rail management's relentless determination to suppress the reporting of injuries and safety concerns through the imaginative use of retaliatory discipline and discrimination.

So, without further adieu, trainlawblog hereby announces that the First Annual P.U. Harassment Award goes to the Union Pacific Railroad Company, in recognition of the nine Merit Findings its conduct has garnered to date. But the Norfolk Southern Railway is right behind with eight Merit Findings to date, and thus deserves Honorable Mention. And by this time next year the BNSF Railway Company will have a real chance to claim the Award, because it has well over 100 FRSA complaints pending decision, the most of any railroad in the nation!

So, congratulations to you winners! And to all you runner up railroads, remember that 2012 provides another 365 days of opportunity for you to demonstrate just how recklessly retaliatory you can be!

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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 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. 

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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.

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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.

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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.

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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.

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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.

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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.

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The good people who investigate Federal Rail Safety Act complaints are part of OSHA's Whistleblower Protection Program (OWPP). For those of you interested in the internal workings of OWPP, click here for the official Report on OSHA's plans for improving its performance, including the hiring of more investigators and increasing training. For the official web site of the OWPP with descriptions of the 21 federal whistleblower laws it enforces, click here.

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Another railroad has been hit with Federal Rail Safety Act punitive damages for disciplining injured employees based on vague safety rules. This time it's the Burlington Northern Railroad, who charged a conductor with being "careless of the safety of yourself and others" after he reported an injury. At the disciplinary trial, the charging officer "testified that all injuries are preventable and because the conductor reported a work-injury, he must have violated that rule." Based on such Alice In Wonderland logic, the Railroad imposed a 30 day record suspension with a one year probation. But OSHA Whistleblower's Office was not impressed with such circular logic, and imposed an award of $75,000 in punitive damages and $25,000 for emotional distress. For the full text of the FRSA Award, click here.

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It's official. Thanks to the Federal Rail Safety Act, railroads can no longer impose discipline based on vague safety rules that are triggered only when a worker reports an injury.

Every railroad has so-called "safety" rules stating employees must "be alert and attentive" and "take care to prevent injury to themselves" and "when in doubt take the safe course." Any worker who reports an injury automatically is in violation of such rules, whose only function is to provide a basis to discipline workers who report injuries. In effect, such rules prohibit employees from being injured, and then are used as a bogus basis to discipline workers who report an injury.

Those days are over. In a case where a conductor slipped on ice and was suspended for ten days after the railroad found he "was not alert" and "caused an injury to himself" and "did not take the safe course," OSHA's Whistleblower Office slapped the railroad with $100,000 in FRSA punitive damages, plus $25,000 for emotional distress. From now on, railroads that uses such vague "safety" rules to discipline injured employees are just asking to get hit with FRSA punitive damages. For the full text of the FRSA Award, click here.

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This entry honors the memory of Roger M. Lenfest, Jr., a courageous rail labor leader who has left us too soon. Roger’s railroad career spanned 40 years, most recently as a United Transportation Union General Chairman representing conductors on various carriers. But Roger's defining moment as a union rep came in 1985, when he was General Chairman for the conductors on the Boston commuter lines operated by Tim Mellon’s B & M Railroad.

Roger raised a safety issue about the lack of flagmen at construction sites on the mainline, and the B & M Railroad responded by firing one of his local chairman. The next morning, on November 4, 1985, Roger shut down the commuter rail service for the Boston region by ordering an unprecedented system-wide refusal to work under hazardous conditions. The B & M immediately obtained a temporary restraining order from the United States District Court in Boston ordering all employees back to work. The Railroad then fired all of Roger’s local chairmen and placed liens on their homes for millions of dollars in civil damages.

The trial judge ruled for the Railroad, but Roger kept the faith, and on September 2, 1986 the First Circuit Court of Appeals decided the first case ever under the original Federal Rail Safety Act when it issued a landmark decision overturning the trial judge and ruling that Roger's action was not an illegal strike but rather a refusal to work under hazardous conditions protected by the Federal Railroad Safety Act. B & M Corp. vs. Lenfest, et al., 799 F.2d 795 (1st Cir. 1986). We forced the Railroad to immediately reinstate Roger’s local chairmen and withdraw the liens on their homes. Roger then went on to win over $400,000 in back wages for his local chairmen in arbitration.

Here are the words from the Circuit Court decision establishing "the Lenfest principle":

To hold that union leaders can call for a concerted work stoppage only at the risk of being found liable for instigating an illegal strike is to place them in the position of having to choose between their own welfare and the lives of the employees. This is contrary to what Congress intended. We hold that where hazardous working conditions are the result of a system-wide failure to provide adequate protection so that employees are in danger of death or serious injury without knowing it, and the Union is aware of such danger, the Union may call a concerted work stoppage under the FRSA to protect the lives and safety of the employees.

The Railroad petitioned the United States Supreme Court for an appeal, but the Supreme Court refused, thus keeping the Lenfest decision in place as the law of the land. For the last 25 years Lenfest has stood as the leading case on the right of railroad workers to refuse to work under hazardous conditions.

Roger passed away last week at the age of 65. He will be missed, but never forgotten. Those of us who knew him can take some comfort in the fact that, although his voice will no longer be heard, the legacy of his fearlessness and vision will live on.

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Here's the latest judicial decision rejecting the bogus "election of remedies" defense railroads continue to raise in Federal Rail Safety Act cases. This one is especially sweet in that it allows a worker to continue her frontal attack against Norfolk Southern Railway's notorious practice of firing employees who report on duty injuries.

The facts are familiar to anyone who deals with Norfolk Southern. Latonya Milton reported an injury five days after the incident that caused the injury, and as usual NS fired her for filing an "untimely" injury report and for making "false and conflicting statements" regarding the reporting of her injury. She appealed the termination through her collective bargaining agreement, and also filed a FRSA complaint with OSHA's Whistleblower Office. NS argued that her CBA appeal was an "election of remedies" that precluded her from pursuing a FRSA claim.

Judge Malamphy rejected that argument, ruling Milton "is not precluded from appealing her termination pursuant to her collective bargaining agreement while simultaneously litigating this claim under the FRSA." NS asked for an immediate reconsideration, but to no avail. The Judge again concluded: "I find that the FRSA does not prevent an individual who has filed a grievance pursuant to a collective bargaining agreement from pursuing a complaint under the FRSA." How many times do judges have to rule before the railroads accept reality? For the complete text of both decisions, click here.

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Are you fed up with rail managers who habitually ignore safety rules and regulations, and then blame the workers who get hurt as a result of management's unsafe practices? Now you can do something about it. Here's how to disqualify such managers from ever working in the railroad industry again.

There is a little known Federal Rail Administration regulation that gives the FRA the power to permanently disqualify unsafe rail managers from railroad work. Entitled "Disqualification Procedures," it sets forth how the FRA bans managers and supervisors "who have demonstrated their unfitness to perform safety-sensitive functions by violating any rule, regulation, order, or standard prescribed by the FRA." It applies to all managers involved in a railroad's operations, track, equipment, or training departments.

The process begins when information about such a manager comes to the FRA's attention (more on that below). The FRA then issues a Notice of Proposed Disqualification charging the manager with violating one or more of the FRA's rules, regulations, or standards. The manager is then subjected to a public hearing before an administrative law judge where the FRA's Chief Counsel presents witnesses and documents proving the facts alleged in the Notice of Disqualification. If the charges are sustained, the judge then issues an order disqualifying the manager from any safety sensitive job on any railroad. The only appeal is to the FRA Administrator, whose decision is final and not subject to any further review. Thereafter any railroad that fails to inform prospective employers of a manager's disqualification or who actually hires a disqualified manager must pay penalties of up to $11,000 per day or $4 million per year.

Here's where you come in. In order for this process to work, the FRA needs to be provided with the information confirming a manager's violation of a safety rule or regulation. That means providing documents and the names of witnesses able to verify the manager's violation. So if you want to turn the tables on managers who ignore safety while blaming the workers who get hurt as a result, send a confidential email to charlie@trainlaw.com (or the designated legal counsel of your choice) explaining the manager's violation and listing the witnesses and documents that will confirm the violation. We will evaluate whether that information is strong enough for the FRA to pull the trigger on the unsafe manager.

And remember, if you do end up providing that information to the FRA, the Federal Rail Safety Act protects you from any retaliation by your employer railroad! So you have nothing to fear, and your co-workers and the FRA will thank you for it.

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Add this to the growing chorus of judicial voices shouting down the bogus "election of remedies" defense raised by railroads. In a cogent decision, Judge Berlin confirms that Federal Rail Safety Act  complaints are independent of Railway Labor Act disciplinary proceedings and cannot be derailed by a RLA award reinstating an employee with back pay.

Here are the facts. Union Pacific employee Robert Powers reported an on the job injury, and his doctor put him on medical leave with medical restrictions. The Railroad secretly videotaped Powers doing certain activities it claimed violated his medical restrictions, and then fired him. Powers filed a FRSA retaliation complaint, and on his behalf the union appealed the termination to a RLA arbitration board. When the RLA Board reinstated Powers with back pay, the Railroad moved to dismiss his FRSA complaint, arguing that his use of the RLA process constituted an "election of remedies" barring a FRSA claim. Judge Berlin soundly rejected that argument. Here are some excerpts from the opinion:

The FRSA requires what it terms an "election of remedies" as follows: "An employee may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier." 49 U.S.C. § 20109(f). The ultimate question presented here is whether the union's pursuit of a grievance, asserting on Complainant's behalf rights under a collective bargaining agreement, constitutes an election of remedies under the Federal Rail Safety Act and forecloses the present action.

At the RLA arbitration, the union was limited to the remedies that the collective bargaining agreement allowed. Those remedies did not include emotional distress or punitive damages. In contrast, the Federal Rail Safety Act allows these remedies. See 29 U.S.C. §20109(e)(2)(C), (e)(3) (providing compensatory damages plus possible punitive damages not to exceed $250,000).

The FRSA's election of remedies provision could apply only if the remedies available under the collective bargaining agreement are no less than those under the Act, which include compensatory damages and permissible punitive damages of at least $250,000. Nothing on the record suggests the collective bargaining agreement allows for such remedies.

The union's pursuing a grievance did not trigger the election of remedies provision in the Federal Rail Safety Act. It was an act of the union, not of Complainant, and it did not allege an "unlawful act' but was limited to a claimed breach of contract. It was based on the union's choice to pursue an avenue with lesser remedies than those that the statute affords.

I find that Union Pacific construes the election of remedies provision too broadly. Complainant is correct that his union's pursuit of a remedy under the collective bargaining agreement did not trigger the Act's election of remedies provision.

I conclude that, when a union chooses to pursue a grievance on behalf of an employee, it is acting as a union, and that this is distinct from an election of the individual employee to seek a remedy other than under the Federal Rail Safety Act. As the union, not Complainant, pursued the grievance, Complainant did not trigger the election of remedies provision in the Act.

Well said. For the full text of Judge Berlin's decision, click here.

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The Union Pacific Railroad is about to learn the hard way that arrogance is not a defense to the Federal Rail Safety Act.

The FRSA gives OSHA the power to order the "preliminary reinstatement" of an employee with full back pay. The reinstatement goes into immediate effect even if the railroad objects to OSHA's findings. And even if the railroad ultimately overturns OSHA's award, the railroad can never recover the reinstatement wages it paid.

Railroads mess with the power of preliminary reinstatement at their peril. Case in point. After UP machinist Brian Petersen reported an injury, he was suspended, dismissed, and then returned to service subject to instant termination at the whim of any manager. Sure enough, four days after returning to work under that draconian condition, a manager saw him and two other machinists standing on Timken Bearings in order to read the serial numbers off of traction motors. Petersen was immediately sent home and dismissed in all capacities. Nothing happened to the two machinist who were with him doing the same thing.

Petersen suffered emotional and financial harm due to UP's decision to terminate him. He went into debt and had to move his wife and children to find other work. The stress was so intense he ended up in the emergency room with what appeared to be a heart attack. OSHA found UP's disparate treatment of Petersen to be in outrageous violation of the FRSA, and ordered $214,000 in make whole remedies, including: immediate reinstatement; $105,000 in back pay; $17,000 for emotional distress and moving expenses; $75,000 in punitive damages; and $17,000 in attorney's fees. For the full decision, click here.

So how did UP respond? In an insolent affront to the authority of OSHA, UP emailed OSHA stating that it "will not implement the preliminary order for reinstatement." Big mistake. Despite its arrogance, UP is no match for the power of the United States government. The United States Attorney will promptly enforce OSHA's reinstatement order in United States District Court, and all UP will end up accomplishing is to confirm its "reckless disregard" for the FRSA rights of its employees, thus setting the stage for even greater FRSA punitive damage awards in the future.

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OSHA has blown the whistle on Norfolk Southern Railway Company's practice of disciplining injured workers based on bogus "falsification" charges. From now on, Norfolk Southern's "falsification" strategy will cost it dearly.

In order to discourage the reporting of injuries, Norfolk Southern routinely charges injured employees with "falsifying" the injury. That is what happened to Conductor Jeff Thompson. After he reported an injury, he was accused of falsifying his symptoms and was suspended for six weeks. A RLA arbitrator ordered Norfolk Southern to pay all of his back wages, and now OSHA is ordering the Railroad to pay $15,000 for his emotional distress and another $15,000 in attorney fees.

This Award is noteworthy because (1) it lays the groundwork for punitive damages against Norfolk Southern for such egregious conduct, and (2) it confirms that a RLA award of back wages does not prevent OSHA from ordering the full spectrum of Federal Rail Safety Act economic and equitable remedies. For the full text of the Award, click here.

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After a supervisor for the Utah Transit Authority was fired for raising safety concerns, OSHA's Whistleblower Office ordered him reinstated with over $150,000 in make whole economic damages.  In refusing to dismiss that case, an ALJ has ruled that the FRSA  protects any employee who raises safety concerns, even supervisors on an intrastate commuter railroad not yet open to the public:

Congress recognized that in order to improve safety and security on the railroads, railroad employees play a key role and are to be encouraged to raise safety or security issues with supervisors and/or government officials, so the issues can be addressed, without fear of reprisal for doing so. . . .

The potential safety or security issues railroad employees are exposed to are the same, whether the commuter railroad operates wholly intrastate or crosses state borders. . . . Congress did not intend to protect some commuter railroad employees who raise safety or security concerns but not others.

Amen. For OSHA's Merit Finding, click here.  For the ALJ's full opinion, click here. For the full FRSA Library, click here.

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OSHA's Whistleblower Office has slammed Metro North Railroad with punitive damages for using a Federal Rail Safety Act complaint as a basis for disciplining a worker. After a laborer at Metro North's New Haven Shop filed a FRSA complaint, the Railroad charged the worker with "Conduct unbecoming a Metro-North employee in that you filed a false statement in your complaint to OSHA claiming violations of the Federal Rail Safety Act." Metro North then held a disciplinary trial on that charge and issued a 30-day suspension. Even though Metro North later dropped the suspension and the worker lost no wages, OSHA nevertheless imposed over $80,000 in punitive damages and attorney fees against the Railroad.

OSHA found that "All the evidence indicates that the management officials most involved in the trial and decision knew that the charges and subsequent discipline were retaliatory but they allowed it to happen anyway." OSHA went on to warn railroads:

The acts of bringing disciplinary charges and instituting trial proceedings against an employee for filing a complaint with OSHA and accusing the employee of lying to OSHA in those charges and proceedings have a chilling effect on the Railroad's employees and would tend to dissuade others from asserting their rights under FRSA. Even if the charge is later dropped, that does not remedy this chilling effect, as the act of bringing the charge against an employee undermines all of the Railroad's employees' willingness and ability to exercise their most basic rights under FRSA. . . . Metro North's conduct in retaliation against an employee for filing a FRSA complaint with OSHA exhibited a reckless disregard for the law and complete indifference to the Complainant's rights and the rights of Metro North's other employees. Bringing disciplinary charges against an employee that on their face threaten discipline for claiming violations of FRSA (regardless of whether the charges are later dropped) functions to chill employees from exercising their most basic rights under FRSA.

In a Press Release, OSHA's Regional Administrator indicated that the FRSA is designed to remedy the "culture of silence in which hazardous conditions are masked because employees will be fearful of reporting them" and stressed it is "unconscionable" for a railroad to discipline an employee for  invoking his FRSA rights.

The message to railroads nationwide is: workers who file FRSA complaints are protected from any discipline that is based in whole or in part on the filing or content of the complaint. So don't even think about using a FRSA complaint as the basis for discipline, unless of course you enjoy getting hit with punitive damages. For the complete text of the decision, click here. For access to the FRSA Library, click here.  For a National Public Radio piece on this Award, click here.

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Here is a classic example of how the Federal Rail Safety Act is correcting rail management's reflexive "blame the injured worker" mentality. The Railroad failed to provide the proper tool to do the task in question. So the worker used whatever was at hand to complete the task, just as many other workers had done with management's blessing and without being disciplined. But this time the worker was injured. So, instead of disciplining the managers who failed to provide the proper tool, the Railroad disciplined the worker for using "an improper tool."

Under the FRSA, this is an invitation to be slapped with punitive damages, and OSHA has done just that. Even though the worker only lost one day's pay, BNSF now must pay him $75,000 in punitive damages and $15,000 for emotional distress, plus attorney's fees, for a total of $95,096.  The FRSA has made retaliation against injured workers an indulgence that will cost railroads dearly. For the complete text of OSHA's BNSF Award, click here.

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The act of filing a Federal Rail Safety Act complaint with OSHA is itself a protected activity that cannot in any way be used against the employee. But co-workers are protected as well. Any co-worker who talks to an OSHA Whistleblower investigator or who cooperates with the OSHA FRSA investigation gains protection going forward from any retaliation by the Railroad. So any fellow worker who provides information to an FRSA investigator dons the same suit of protective armor against retaliation and wields the same shield and sword to strike back against retaliatory managers. In some circumstances, union reps may be able to leverage such FRSA protection to push back against disciplinary charges. The citation for the FRSA subsection providing such protection is 49 USC 20109(a)(3).

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Refreshing words from FRA Administrator Joe Szabo here at the National Mediation Board's Passenger Railroad Conference in Philadelphia. Joe complimented Amtrak President Boardman for disconnecting manager compensation from injury statistics. Joe noted that while this will result in an increase in reported injuries, it will provide the FRA with the type of accurate information necessary to improve its rail safety programs. It also will help replace management's "blame the victim" reflex with a focus on analyzing the systemic root causes of injuries.

So a good start, but not nearly enough to avoid FRSA punitive damages. As Judge Berlin recently noted when ordering punitive damages against Amtrak, the cultural change that really counts will be when employees feel free to report injuries and safety concerns without any fear of discipline or retaliation. And so far, there is no evidence that change has occurred.

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Case law is beginning to clarify punitive damages under the Federal Rail Safety Act. Such damages are based on a railroad's callous indifference toward the FRSA rights of its employees. Here is some conduct justifying the imposition of FRSA punitive damages:

• discouraging employees from filing injury reports or raising safety concerns
• targeting for closer scrutiny employees who report injuries or raise safety concerns
• blaming an injured employee without addressing the underlying systemic causes of the particular injury
• disciplining employees who report injuries without disciplining the managers who contributed to the circumstances that made the injury possible
• attempting to influence employee medical care or otherwise interfering with medical treatment
• disciplining employees who follow the orders or treatment plans of their treating doctors
• tying compensation of supervisors or managers to injury statistics or goals
• failing to have a HR manager or attorney review disciplinary actions to assure compliance with the FRSA

The leading FRSA punitive damages case to date is Anderson v. Amtrak. The Judge there discussed this type of conduct and awarded $100,000 in punitive damages, noting "At this point, Amtrak is on clear notice that these practices exist; any continuing failure to remedy them could amount to further and additional conscious disregard of its obligations." That Judge recently denied Amtrak's Motion For Reconsideration, noting:

Amtrak neglects that part of the reason for punitive damages is to punish those who act in conscious disregard of an employee's federally protected rights. As to the deterrent effect of punitive damages, Amtrak . . . has offered nothing to show that its culture has changed, that employees no longer feel deterred from reporting injuries, and that managers responding to employees' injury reports now respect those employees' federally protected rights.

Haunting words indeed for railroads nationwide. Managers ignore them at their peril. For the full text of both decisions, go to the Punitive Damages section of FRSA Library.

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Strange as it sounds, a railroad manager can have a valid reason for taking disciplinary action against an employee and still be in violation of the FRSA. How? Because the employee's protected activity in reporting an injury,raising a safety concern, or following a treating doctor's orders was a "contributing factor" to the action.

The FRSA requires that an employee prove his or her protected activity was a "contributing factor" to the adverse discipline or discrimination.  A contributing factor is any factor which alone or in combination with other factors tends to affect in any way the outcome of the decision.  Here is OSHA's explanation in the FRSA regulations:

In proving that protected activity [such as reporting an injury, raising a safety concern, or following a treating doctor's orders] was a contributing factor in the adverse action, an employee need not necessarily prove that the railroad's articulated reason was a pretext in order to prevail, because an employee alternatively can prevail by showing that the railroad's reason, while true, is only one of the reasons for its conduct, and that another reason was the employee's protected activity.

29 CFR Part 1982.  What does that mean in plain English?  A railroad can have a valid reason for firing an employee and still violate the FRSA if the discipline also is based in part on the employee's protected activity of raising a safety concern, reporting an injury, or following a treating doctor's orders.

So here's the question: if the employee had not engaged in the protected activity, would the discipline still have occurred? If the answer is no, then the employee's protected activity is a contributing factor and the railroad is in violation of the FRSA even if it can articulate another reason for the discipline.

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OSHA's Whistleblower Office will never approve a Federal Rail Safety Act settlement that includes confidentiality. Why? Because the FRSA is supposed to remedy the chilling effects of retaliatory actions, not lock them in. And in the railroad grapevine, no retaliatory action goes unnoticed. When employees see a co-worker hammered after raising safety, injury, or fraud concerns, it exercises a profound chilling effect on their willingness to do the same. The only way to remedy that chilling effect is to publicly hold railroads accountable for their violations of the FRSA, which is why OSHA issues press releases announcing FRSA findings against railroads.

But for lawyers, insisting on or agreeing to confidentiality clauses in FRSA settlements invites charges of unethical conduct. Here's why.

Under Rule 3.4(f) of the Model Rules of Professional Conduct, a railroad attorney cannot ethically propose a settlement agreement that prevents a FRSA complainant from giving relevant factual information to other railroad workers or OSHA. Here is a quote from the leading article on the subject:

Proposed settlement clauses that would expressly bar the plaintiff from voluntarily cooperating with parties, agencies, or lawyers who are suing or investigating the defendant clearly run afoul of Rule 3.4(f), even if they allow for disclosures in response to a subpoena. Equally important, blanket confidentiality clauses that bar any discussion of the underlying facts and make no exception for disclosures of relevant information to other litigants violate the rule as well.

Malone and Bauer, "Unethical Secret Settlements: Just Say No," Trial (Sept. 2010). Click here for a version of the Trial article, and click here for a more in-depth discussion by Prof. Jon Bauer in the Oregon Law Review. Given the FRSA's provision for punitive damages, it is especially important for OSHA's Whistleblower Office to have unfettered access to all information relevant to their FRSA investigations. Rail workers simply cannot be barred from sharing their FRSA complaint experiences with OSHA or with co-workers and their attorneys.

And if a FRSA complaint stems from a rail worker's work related injury, it would be a federal crime for a railroad attorney even to attempt to prevent a FRSA complainant from voluntarily furnishing information regarding his injury that is relevant to another worker's injury. Section 60 of the FELA makes it a federal crime for a railroad or its attorney to attempt to prohibit such sharing of information among co-workers. 45 USC 60.

Moreover, Rule 5.6(b) of the Model Rules prohibits lawyers from participating in any settlement agreement that restricts a lawyer's right to practice. Again, to quote Malone and Bauer's analysis:

settlements that prohibit a plaintiff lawyer from using any information obtained during the case have been found to violate the rule, because such a promise would interfere with the lawyer's ability to provide effective representation to others suing the same defendant.

So here's the message to rail labor attorneys representing FRSA complainants: other than the dollar amount of a settlement, just say no to confidentiality in FRSA cases. And here's the message to railroad attorneys defending FRSA cases: don't even think about asking for confidentiality, unless of course you enjoy being the subject of bar disciplinary committee proceedings.

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Federal Rail Safety Act Section 20109(c)(1) prohibits railroads from "deny[ing], delay[ing] or interfer[ing] with the medical or first aid treatment of an employee who is injured during the course of employment." In the first case to interpret the meaning of (c)(1), OSHA took the position the scope of that prohibition goes beyond initial medical treatment. However, the ALJ's post-trial decision adopted a narrower scope: "I conclude that Section 20109(c)(1)'s mandate prohibiting railroads from 'deny[ing], delay[ing] or interfere[ing] with medical or first aid treatment of an employee who is injured during employment' applies to the temporal period surrounding the injury."  Santiago v. Metro North at page 24. It remains to be seen if this narrower scope will prevail on appeal to the ARB or in the federal courts.

However, it is clear the scope of Section 20109(c)(2) is not so limited. Section (c)(2) mandates that railroads "may not discipline, or threaten discipline to, an employee . . . for following the orders or treatment plan of a treating physician." Thus (c)(2) explicitly prohibits railroads from disciplining an employee during the entire period of time the employee is following the orders or treatment plan of a treating doctor. And the absence in (c)(2) of any phrase qualifying that the employee must have been "injured during the course of employment" means that railroads are prohibited from disciplining any employee for following the orders or treatment plan of a treating doctor.  This means a railroad cannot use absences from work ordered by a treating doctor as a basis for attendance discipline.  And it means an employee cannot be disciplined for insubordination when he follows his doctor's order not to travel and thus refuses to travel to a railroad medical department appointment.

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Another Judge has ruled that the Railway Labor Act does not preclude Federal Rail Safety Act actions. To quote from the second post-trial ALJ FRSA decision to be handed down:

          The reach of the RLA is limited to disputes involving the interpretation or application of existing labor agreements. It does not address allegations or claims that the railroad violated federal statutes prohibiting discrimination against an employee. . . . The source of the instant claim is Sections 20109(a)(4) and 20109(c)(1) of the FRSA, which prohibit any railroad from discriminating against an employee for reporting a work injury and prohibits a railroad from denying, delaying or interfering with the medical or first aid treatment of an employee injured during the course of employment. Resolution of the question of whether Metro North discriminated against the Complainant requires interpretation and application of the FRSA and not the CBA between the parties. The present action is not preempted by the RLA. 

Anthony Santiago v. Metro North Commuter Railroad Co., Inc, 2009-FRS-00011 (September 14, 2010) at pages 14-15. For the complete decision, click here. More about this case to come.

Anthony Santiago v. Metro North Commuter Railroad Co., Inc

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As of August 31, 2010, the Federal Rail Safety Act has its own set of regulations setting forth the requirements and procedures for every aspect of FRSA litigation, including the filing of complaints, OSHA investigations, appeals to ALJ de novo hearings, review by the ARB, and optional federal court jury trials. You can access the complete regulations by going to the FRSA Library and clicking on the link at the "FRSA Regulations" heading. Any comments on these new regulations must be sent to the DOL by November 1, 2010, via http://www.regulations.gov and refer to Docket No. OSHA-2008-0027.

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The first two stages of grief are denial and anger. And when it comes to the Federal Rail Safety Act, railroads still are deeply mired in denial and anger. As a result, any time OSHA's Whistleblower Office hands down a FRSA award against a railroad, the railroad reacts with angry denial and automatically appeals for a de novo trial before an administrative law judge. Well, here is compelling evidence that such reflexive appeals of FRSA awards expose railroads to economic disaster.

In October 2008 OSHA ordered Amtrak to pay $20,000 in punitive damages plus back pay to a coach cleaner in Seattle who experienced retaliation after reporting an injury. Amtrak's denial toward the FRSA blinded it to the merits of the case, and out of anger at being ordered to pay punitive damages it reflexively appealed for a ALJ trial. The trial was held in June 2009 before ALJ Steven B. Berlin, and now ALJ Berlin has just issued a 29 page Decision and Order (the first to be issued by an ALJ after a de novo FRSA trial).

So what has Amtrak accomplished by its appeal? Let's see. Instead of paying $20,000 in punitive damages, now it must pay $100,000. Instead of paying no compensatory damages, now it must pay $60,000. Instead of paying no attorneys fees, now it must pay for the attorney fees and trial costs generated by BOTH sets of lawyers during the trial (that's right, Amtrak now must pay not only for its own attorneys but also for the employee's attorneys). So as a result of its denial and anger, the railroad will end up paying over ten times the amount of the OSHA award.  Not to mention establishing a foundation for even higher punitive damage awards against Amtrak in the future.

The lesson for railroads is clear: angry denial is not a viable defense strategy. Until you take off your blinders of denial, until you let go of your anger at the FRSA's threat to your management culture of retaliation, this pattern will be repeated again and again. Remember, the final stage of the grieving process is acceptance. The longer you stay stuck in denial and anger, the more it will cost you. And when you finally read the plain language of the FRSA's text with an open mind, and actually stop retaliating against employees who report injuries or safety concerns, it won't cost you a dime.

Stay tuned for more posts on the finer points of this important ground breaking Decision. For the full text of Nicole Anderson v. Amtrak, click here.

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Rail labor attorneys, union reps, employees, and even OSHA Whistleblower investigators: Your search is ended!  Everything you need to know about the Federal Rail Safety Act is now in one easy place.  In response to numerous requests, I have created a web page entitled FRSA LIBRARY.  This is a repository for information, texts, forms, decisions, pleadings, and anything else relevant to the FRSA.  Here's an outline of the topics included in the Library:

The FRSA In A Nutshell

Text of FRSA

FRSA Legal Standard Summary

FRSA Complaint form for filing with OSHA Whistleblower Office

(including link to OSHA Whistleblower Regional Offices & Investigations Manual)

Subsection (a) Injury Reports

Subsection (c) Medical Treatment

Subsection (e) Remedies

Subsection (f) Election of Remedies

FRSA Punitive Damages

FRSA Legislative History

FRSA Administrative Law Judge Proceedings

(including link to ALJ Rules of Procedure and Rules of Evidence)

Administrative Review Board appeals from ALJ Decisions

U.S. District Court Proceedings

(including U.S. District Court Complaint form)

FRSA Retainer and Attorney Fees 

(including sample Affidavit of Fees and Costs)

Other Whistleblower Protection Statutes Available to Railroad Employees

(National Transit Systems Security Act & OSHA Section 11(c))

This is a living library designed to grow organically for the use of everyone interested in the FRSA. Help this important new statute fulfill its purpose by sending along any decisions, pleadings, forms, etc to charlie@trainlaw.com so they can be added to the appropriate section. To access the Library, go to the trainlaw site  and click on the blue button on the left hand side labelled "FRSA LIBRARY"  To receive automatic updates on breaking FRSA developments, type your email address in the subscription box at the left hand margin of this blog page. 

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The Federal Rail Safety Act (FRSA) is a new statute with many novel questions, not the least of which is: what should the Retainer Agreement provide? Unlike FELA personal injury claims where pure contingency fee agreements are well-established, the FRSA is a different animal, with a statutory fee-shifting provision and a wide spectrum of potential make whole remedies and economic damages. The retainer agreement should strike the proper balance between protecting the interests of the employee client while giving the attorney sufficient incentive to take the case and zealously prosecute it to maximize the client's recovery. So what is an ethical attorney to do?

In response to requests from rail labor attorneys around the country, I am here sharing the FRSA Retainer Agreement developed after consultation with a legal ethics expert. BUT only with the following CAVEAT: do not use this retainer agreement before first consulting with your own ethics guru to confirm it complies with the ethical rules applicable to the jurisdictions or courts in which you practice. So with that DISCLAIMER, click here for FRSA Retainer Agreement.

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The bogus "election of remedies" defense to Federal Rail Safety Act claims raised by railroads just took a major hit.  Yesterday the Department of Labor filed an appellate Brief confirming that a railroad worker who pursues a grievance or arbitration under the Railway Labor Act is not thereby precluded from simultaneously pursuing a FRSA whistleblower protection claim.  Noting that "retaliation and a violation of the CBA are not the same unlawful acts," the DOL's official position is that the FRSA's "election of remedies provision does not preclude a FRSA complaint where an employee has pursued a grievance and/or arbitration pursuant to the employee's collective bargaining agreement under the Railway Labor Act."  For the full decision, click here.  For some of the back story regarding this issue, click here.

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Here's more confirmation that an injured railroad worker cannot be disciplined for following his treating doctor's orders. Under the Federal Rail Safety Act, railroads are strictly prohibited from "denying, delaying, or interfering" with the medical treatment plan of a treating doctor. In a recent Award, OSHA found that PATH Rail violated the FRSA when it imposed "excessive absence" discipline on a worker who followed his doctor's orders to stay out of work due to an off-the-job aggravation of a prior on-the-job injury. Full text of Award. In the words of OSHA's Regional Administrator, "Railroad employees have the statutory right to report work-related injuries and to follow the orders or treatment plan of a treating physician. Railroads who retaliate against employees for exercising their rights will be held accountable." OSHA Press Release. So absences in any way related to injuries are immune from discipline. That is the message OSHA will keep sending until railroads get it.

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Railroads are losing their campaign to gut the Federal Rail Safety Act by claiming that the Railway Labor Act precludes rail workers from invoking FRSA protection. In a resounding well-reasoned decision, Administrative Law Judge Richard A. Morgan explains that Congress enacted the FRSA "to allow employees to attempt to vindicate their rights using multiple means" and that the FRSA "clearly dictates that an employee is not precluded from pursuing both his RLA appeal to arbitration and his FRSA whistleblower protection complaint." For the full text of Newman v. Union Railroad, click here (PDF).

So the RLA does not preempt the FRSA. Ever. The two statutes simply run on separate tracks. In the words of Judge Morgan, employees are "not precluded from appealing their RLA discipline pursuant to the collective bargaining agreement while simultaneously litigating against the railroad through the FRSA." Kudos to Attorney Daniel J. Cohen and his client Charles Newman for adding another nail to the coffin of rail managment's bogus "election of remedies" defense.  For more background on this issue, click here.

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The largest award under the  Federal Rail Safety Act  has just been handed down against New Jersey Transit Rail. OSHA's Whistleblower Office found NJ Transit violated the FRSA by disciplining a worker in retaliation for his reporting an injury, and has ordered the payment of $570,000 in damages to make him whole. This Award is historic not only because of its size, but because of the broad spectrum of its "make whole" damages, including punitive damages and damages for ruining his credit.

The worker--my client conductor Anthony Araujo--witnessed a fatal 13,000 volt electric arc explosion involving a contractor crew. In such a situation, if NJ Transit had any grounds for believing Tony had contributed to the incident, federal regulations required the Railroad to drug and alcohol test him. However, after extensive interrogation, NJ Transit told Tony he had done nothing wrong, and confirmed that by not testing him for drugs and alcohol.

Tony then was sent to the Railroad's EAP for counseling, and the EAP Senior Counselor informed him he was not able to work and referred him for immediate treatment. This resulted in a lost time reportable injury. The next day the NJ Transit General Superintendent called the EAP to complain, and soon after filed disciplinary charges claiming Tony contributed to the fatal incident after all. Over the next year, the Railroad denied Tony his EAP benefits and then suspended him without pay. As a result of his lost income, Tony's credit rating plummeted, his car was repossessed, and the bank foreclosed on his home, generating significant mental distress.

The FRSA is notable because it creates a statutory right for rail workers to win punitive damages against their employer railroads.  OSHA's investigation here found that because NJ Transit's "conduct in retaliation against an employee for reporting an FRA reportable lost time injury exhibited reckless disregard for the law and complete indifference to complainant's rights," punitive damages are warranted.  Unless and until rail managers respect the FRSA rights of their workers, punitive damage awards will be routine.

In the past, railroads were free to discipline employees without having to worry about paying economic damages beyond limited back pay.  Those days are now over.  This Award makes clear railroads will pay full damages for all of the economic losses their retaliatory discipline inflicts on workers, including the value of homes and cars lost as a result of employees being forced out of work. For the full text of the Araujo Award, click here. For OSHA's Press Release, click here.

This case strips bare the retaliatory mentality of rail managers. With my help, Anthony Araujo was able to stand up for his FRSA rights and do his part in labor's crusade to transform the retaliatory culture of rail management. This Award confirms that the FRSA hands to every rail worker the sword and shield necessary to wage that crusade. And the message of this Award to railroads is loud and clear: your world has changed, and managers ignore the FRSA at their peril. So here's to Tony, and to the thousands of long suffering railroad workers who will be following the trail he blazed.

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The truth is always refreshing, especially when it comes from an unexpected source. Veteran rail manager David L. Gunn was hired by the Washington Metropolitan Area Transit Authority’s (WMATA) Board of Directors to tell them how to improve safety on the DC subway system. His conclusion? "End the 'shoot the messenger' culture at all levels of the organization" and thereby "Create a workplace where safety is openly discussed, problems are reported and solved, and all employees, supervisors, and managers know they can ask for help without fear." Here is the Press Release.

Wow. Ending the "shoot the messenger" culture is precisely why Congress recently passed the NTSSA and FRSA  laws, to ensure that subway and rail workers who raise safety concerns are protected from retaliation.

And now enlightened rail managers are admitting the truth: management's blame the messenger mentality not only discourages employees from raising safety concerns, it actually perpetuates the systemic problems that cause injuries in the first place. So the way to increase rail safety is not to shoot the employee who reports an injury or hazard, but to focus on correcting the root causes of the problem. And any rail managers who persist in their old ways now will be held accountable under the NTSSA and FRSA.

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The first Federal Rail Safety Act complaint against the Port Authority Trans-Hudson railroad has resulted in an award of punitive damages. The fact pattern is familiar to any railroad worker.

Laura, a Signal Tester, was injured on duty due to defective equipment, and duly reported her injury. But instead of using the incident as an opportunity to identify and correct the root cause of the safety hazard (namely, why the railroad allowed the defective equipment to remain in use), PATH's Superintendent sent her a disciplinary charge letter alleging the injury was solely her fault. A typical "blame the victim and ignore the systemic cause" reaction by rail management that happens every day on railroads across the nation, and is a major reason why safety hazards persist.

But things have changed. The FRSA is in effect now, and with my help Laura stood up for her FRSA right to be protected from such retaliatory action. OSHA conducted a thorough investigation, and found that no one else was charged with any safety violations for allowing the defective equipment to remain in use, and that the Railroad could have investigated the circumstances of the incident without ordering the injured employee to face a disciplinary hearing. OSHA concluded that if Laura had not reported an injury, no charge letter would have been sent.

What is interesting here is that Laura did not actually attend any disciplinary hearing or suffer any discipline. She just received an initial charge letter. And OSHA ruled such conduct is a violation of the FRSA that must be remedied. To make Laura whole, OSHA ordered PATH to expunge her disciplinary records and pay punitive damages and attorney fees. Of particular interest is the empowering NOTICE TO EMPLOYEES the Railroad must post on all of its bulletin boards.

So here's to Laura! By standing up for her FRSA rights she is at the forefront of a grass roots movement of workers acting to correct the imbalance of power between rail labor and management.

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When rail labor works together, good things happen. Case in point: a critical meeting last September 15th with the Department of Labor regarding the true meaning of "election of remedies" under the Federal Rail Safety Act (FRSA) is now bearing fruit.

In early September, the DOL appeared headed toward accepting rail management's argument that an employee's participation in the Railway Labor Act (RLA) process constitutes an irrevocable "election of remedies" barring the employee from the protections of the FRSA. However, the DOL asked to hear rail labor's point of view, and invited a few rail labor attorneys to attend a September 15th summit to discuss the issue.

As the attorney who first weighed in on this issue and was set to try the first FRSA cases in November, the DOL asked me to attend. What happened next illustrates the power of working together. BMWED Director of Safety Rick Inclima and St. Paul rail labor attorney Charlie Collins reached out to the invitees, urging us to coordinate our efforts for maximum effect and offering the IBT's Headquarters as a location for us to meet beforehand. And coordinate we did. In addition to Rick and Charlie, Jim Farina and Steve Garmisa showed up from Hoey & Farina in Chicago, as did San Diego rail labor atorney Harry Zanville and UTU Associate General Counsel Kevin Brodar from Cleveland.

We put our heads together. Our challenge was to convince the DOL that the FRSA and the RLA exist on separate parallel tracks with neither one excluding the other. To do that, we had to explain the very real practical differences between the RLA process and the whistleblower protections of the FRSA. It was agreed I would kick off the discussion, and that afternoon we met with high level personnel from the DOL's Solicitor General Office and Directorate of Enforcement Programs.

We had an intense back and forth for over two hours. I opened it up by pointing out that the purpose of the FRSA is to change rail management's culture of retaliation, and the way to do that is to allow the FRSA to operate independently of the RLA. By the end of the meeting I believe we were able to open up DOL's eyes to the fact that RLA proceedings simply do not address or remedy whistleblower retaliation, and that the interpretation sought by rail management would eviscerate the FRSA and return us to the unacceptable status quo before Congress enacted the FRSA.

Now it appears our efforts are bearing fruit. The DOL's Assistant Secretary for OSHA just asked to file an amicus appeal brief with the Administrative Review Board on the issue of "election of remedies," and the BMWED put out a Press Release noting the tide has turned. The sense we are getting is that OSHA now is directing its Whistleblower investigators to conduct their FRSA investigations regardless of any RLA proceedings. And so, thanks to the cooperative efforts of rail labor, the FRSA and RLA will forever operate on separate parallel tracks, where they belong.

BMWED President Freddie Simpson said it best in his Press Release: "Railroads will no longer be able to retaliate against railroad employees who report injuries and safety violations with impunity. This is a substantial victory for all of Rail Labor and every rail worker nationwide, and I am proud that BMWED led the way to this important victory." And to that I can only add, "Amend brother!"

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Here's another example of what happens when a railroad tries to blame an injured worker instead of taking responsibility for the workplace culture that caused the injury in the first place. Declaring "An employer does not have the right to retaliate against its employees who report work-related injuries," OSHA's Whistleblower Office ordered two Illinois railroads to pay over $80,000 in back wages, compensatory damages, and attorney's fees to a former worker who reported an injury and then was subjected to a railroad "investigation" that resulted in his termination. Click here for OSHA's press release, and click here for the full text of the Federal Rail Safety Act that shields employees from such retaliation.

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Here's a quick look back at some of this year's notable developments in the rail safety world:

March: FRA bans railroad supervisors from medical examining rooms: click here

June: OSHA's Whistleblower Office issues $300,000 in punitive damages against Metro North Railroad for violations of the Federal Rail Safety Act FRSA, setting important precedent: click here

October: Judge confirms FRSA punitive damages apply to publicly owned commuter railroads:click here

November: Judge confirms FRSA prohibits railroads from interfering with the medical treatment plan of employees' treating doctors: click here

November: the first trial in the nation of a FRSA complaint is held in New Haven, Connecticut, against Metro North Railroad (stay tuned for the Judge's decision in early 2010)

And looking forward to 2010, here's hoping:

---for more rulings rejecting rail management's bogus argument that the participation of employees in Railway Labor Act disciplinary proceedings somehow constitutes an "election of remedies" that bars them from the whistleblower protections of the FRSA;

---for judicial rulings establishing that under the FRSA, an employee's treating doctor "trumps" over whatever a railroad manager or medical department may think or want to do;

---to increase the beneficial effect of the FRSA's sister law, the NTSSA (which protects subway system employees who raise safety concerns) by encouraging its application on major subway systems such as New York City Transit and the Washington DC Metro.

Meanwhile, here's wishing everyone a safe and productive new year!

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Railroad Medical Departments, beware, you can no longer interfere with an injured employee's medical treatment. Subsection (c) of the Federal Rail Safety Act prohibits a railroad from denying, delaying, or interfering with the medical treatment of an injured employee. The FRSA also prohibits a railroad from disciplining an employee for following the orders or treatment plan of his treating doctor. The railroads argue this FRSA protection only applies to an injured employee's emergency medical treatment. But in the first decision interpreting the meaning and scope of FRSA subsection (c), Administrative Law Judge Colleen A. Geraghty has made it clear the FRSA's

provisions protect employees from interference with medical care or the treatment plan of a treating physician during the course of treatment and recovery from a work injury. . . . Accordingly, an employer's changing the classification of an injury occurring at the workplace to a non-occupational injury may rise to the level of "interference with medical treatment" depending on the circumstances. 

For a link to the full opinion, click Santiago v. Metro North Railroad. Metro North had reported Santiago's on the job injury to the FRA as occupational and paid for Santiago's medical bills accordingly. But then in the middle of his treatment, the Metro North Medical Department unilaterally reclassified Santiago's injury as non-occupational (without amending its FRA report), thus forcing him to choose between forgoing his treating doctor's medical treatment plan or paying for it from his own funds. The result? He now has personally paid or owes over $16,000 in medical bills. His case is going to trial next week. Stay tuned for any punitive damage award.

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An OSHA whistleblower investigator recently asked whether railroad employees are considered to be on duty within the scope of their employement when walking over railroad property prior to the beginning of their shift or when leaving railroad property after their shift is over. Funny she asked me. The leading court decision happens to be a case I tried 20 years ago, Dolores Schneider v. National Railroad Passenger Corp.

The short answer is yes. The appellate court ruled that an "employee traversing the employer's premises to report to or to leave the job within a reasonable time of her shift is fulfilling a function necessarily incident to employment" and thus considered to be on duty within the scope of employment.

So don't let the railroad tell you otherwise. When a railroad worker gets injured just before or after their shift begins or ends, their injury is still covered by the Federal Employers' Liability Act (FELA), and the railroad must report it to the FRA as an "on-duty injury" that is shielded from any adverse action by the Federal Rail Safety Act (FRSA).

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 Metro North Railroad's attempt to exempt itself from punitive damages under the Federal Rail Safety Act has failed. In a case of first impression, an ALJ has just ruled that ALL railroads--including publicly owned commuter railroads--are subject to the FRSA's punitive damage remedy. Plus, the ALJ is requiring Metro North Railroad to go through the past 196 injuries it reported to the FRA and produce documents confirming any discipline initated against the employees who reported those injuries. Why? Because when "determining whether punitive damages are warranted . . . prior similar acts may be important in determining whether a wrongdoer's conduct was reprehensible and thus subject to punitive damages." This is a major step forward in ensuring the protection of railroad workers who report injuries or safety concerns. To read the ALJ's detailed and well-reasoned decision, click here, and to see OSHA's earlier ruling regarding my four clients,click here.

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Here's an open secret: retaliation is the hallmark of an insecure manager who has no clue how to lead workers and who knows in his heart he is not qualified to be in a position of power.

Insecure rail managers perceive reports of safety concerns or injuries as a personal affront to their authority and react by striking back against the employee. Enlightened managers welcome reports of safety problems as an opportunity to improve conditions and take steps to avoid future injuries. Their response is: "Thank you for bringing that to my attention, we will look into it right away and make the necessary corrections to ensure something like that never happens again." But instead of treating a safety or injury report as an opportunity to correct an underlying problem, insecure managers "shoot the messenger" by automatically retaliating against the employee.

The problem is, reporting safety concerns and injuries are now "protected activities" under the Federal Rail Safety Act and cannot be subject to any adverse consequences such as discipline or discrimination. And any such retaliation against employees who report injuries or safety concerns is illegal under the FRSA and will result in punitive damages awards.

So here's how railroads can innoculate themselves against expensive FRSA retaliation claims: treat employee injuries and safety complaints as neutral events. That means changing your management culture so that safety complaints and injury reports are viewed as neutral events that do not provoke adverse consequences.

A corollary of this means changing the financial incentives for railroad managers. The Federal Rail Administration has noted that the annual compensation of managers is affected by the number of injuries reported by employees under their supervision.  Is it any wonder then that rail managers react to the report of an injury as if the employee is taking money out of the manager's pocket? Is it any surprise managers find ways to discourage and chill the reporting of injurires? Instead, why not base the financial compensation of rail managers on how they correct the underlying problems that lead to an injury? So that instead of focusing on disciplining the injured employee, managers focus on eliminating the risk of future injuries?

So that's the secret that will put attorneys like me out of the FRSA enforcement business.  See, e.g., $300,000 in punitives against Metro North Railroad.  All it takes is a change in the culture of rail management from one of retaliation to one of risk remediation. Railroads can do it the easy way (voluntarily) or the hard way (getting hammered by FRSA damages), but one way or the other, the culture of rail management will change. And for that, we can thank the FRSA.

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The railroads obviously have gotten together and agreed to push the bogus argument that any involvement by an employee in the Railway Labor Act CBA grievance-discipline process automatically constitutes an "election of remedies" under Federal Rail Safety Act subsection (f) that precludes any FRSA complaint. It is a bogus argument because it completely ignores the effect of subsection (g) entitled No Preemption and subsection (h) entitled Rights Retained by Employee, which must be read together and harmonized with subsection (f).

As railroad lawyers representing employees, it is critical that we give any OSHA investigators and Administrative Law Judges presented with that bogus "election of remedies" argument the means to reject it out of hand. Back in January I laid out my detailed argument for the holistic analysis of FRSA subsections (f), (g), and (h). "The Real Meaning of Election of Remedies Under the FRSA" And last month, in a well-reasoned and persuasive decision, Administrative Law Judge Daniel L. Leland confirmed that subsection (f) cannot be read in isolation but must be read together and reconciled with (g) and (h). And when that is done, the conclusion that the FRSA is not precluded by the RLA grievance-arbitration process is inescapable. Click here for the full Mercier v. Union Pacific Railroad opinion.

The Mercier decision was just certified to the Administrative Review Board for an interlocutory appeal, and has been assigned docket number ARB #09121. It currently is in the hands of General Counsel Janet Dunlap, who presumably will be issuing an Order regarding a briefing schedule. An ALJ decision that completely ignores the effect of subsections (g) and (h), Koger v. Norfolk Southern Railway Company, ARB # 09101, is currently in the briefing stage. Given what is at stake (unlike ALJ decisions, ARB decisions are binding on OSHA nationwide) amicus briefs in support of the ALJ's analysis in Mercier are definitely in order.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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I feel safer already. The Department of Homeland Security, through its Transportation Security Administration (TSA), has finally gotten around to promulgating new regulations strengthening security on passenger and freight railroads. The new regulations were to go into effect December 26, 2008, but the railroads successfully petitioned for a delay until April 1, 2009. The regs can be found at 49 CFR 1580. For the final report and full text, click here.

Suffice to say, every passenger and freight railroad now must have a Rail Security Coordinator who is available 24/7 to coordinate intelligence and security with the Transportation Security Administration and law enforcement agencies.

And every railroad now is required to "immediately report potential threats and significant security concerns to the Department of Homeland Security Freedom Center at 703-563-3240 or 1-877-456-8722."

Potential threats or significant security concerns are defined to include:

--interference with train crews;

--bomb threats;

--suspicious items that disrupt railroad operations;

--suspicious activity around rail cars or rail facilities;

--discovery of a firearm or other deadly weapon on a train, station, terminal, facility, storage yard, or other location used in the opeation of the railroad;

--indications of tampering with rail cars;

--possible surveillance of a train, facility, storage yard, or other location used in the operation of the railroad;

--threatening correspondence received by the railroad.

The reality is, the TSA has to rely on the eyes and the ears of railroad employees and passengers. So the slogan "If you see something, say something" now has to be changed to "If you see something, call the Freedom Center at 703-563-3240 or 1-877-456-8722." Not as catchy, but hopefully more efficient.

Also, special chain of custody and control requirements apply to freight railroad operations in High Threat Urban Areas (HTUA). HTUAs are listed in an Appendix to the regulations, and include areas around Boston, Jersey City/Newark, New York City, and Philadelphia. The railroad must physically inspect cars carrying "rail security-sensitive materials," keep them in a "rail secure area," and document the transfer of custody in writing or electronically.

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Sounds like Joe Szabo will be the next Head of the Federal Railroad Administration. If so, this is good news for rail labor and anyone concerned with promoting rail safety. Joe's background is as a conductor for both freight and passenger railroads, and until recently he served as Illinois state legislative director for the UTU. Joe has known Obama since Obama was an Illinois state legislator, so Joe will have the President's ear.

And speaking of Hope and Change, is it too much to hope for that Joe will take steps to increase the coordination between the FRA and OSHA's Whistleblower Office when it comes to investigating railroad violations of the new Federal Railroad Safety Act, 49 USC 20109? Congress assigned OSHA the responsibility to investigate FRSA retaliation complaints, but did not give OSHA the subpoena power to force recalcitrant rail managers to hand over the internal documents and data needed to prove patterns of systemic abuse. That's where coordinated efforts by the FRA can come in.

Many of the FRSA violations for retaliating against employees who report injuries and interfering with their medical treatment also are violations of the Internal Control Plan the FRA requires railroads to live by, 49 CFR Part 225. The FRA requires all railroads to publish and enforce an Internal Control Plan (ICP). The Metro-North Railroad ICP is typical, and reads as follows:

"Metro-North Railroad is committed to the complete and accurate reporting of all accidents, incidents, injuries, and occupational illnesses arising from the operation of the railroad. Metro-North is also committed to full compliance with the FRA's accident reporting regulations. Harassment or intimidation of any person that is calculated to discourage or prevent any person from receiving proper medical treatment or from reporting any accident, incident, injury, or occupational illness will not be permitted or tolerated. Disciplinary action will be taken against any employee, supervisor, manager, or officer of Metro-North Railroad who harasses or intimidates."

So a violation of the FRSA often will be a violation of a railroad's ICP, thus giving the FRA the jurisdiction and obligation to investigate. If the FRA works together with OSHA's Whistleblower Office to develop the information necessary to fully investigate such violations, the enforcement of the FRSA will be materially strengthened.

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