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

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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