The ultimate rail safety lessons from the Metro North Railroad train derailment are yet to be learned. As the investigation continues, our foremost concern is for the injured Metro North passengers and Metro North crew members. But one thing is clear: this train collision reminds all of us that the operation of our nation's railroads profoundly affects the safety of the passenger riding public as well as railroad workers.
In a watershed moment for rail safety, the Federal Rail Administration and OSHA's Office of Whistleblower Protection are joining forces to eliminate retaliation against employees who report injuries and safety concerns. OSHA and the FRA have signed an historic Memorandum of Agreement specifying how they will be cooperating to enforce the whistleblower protection provision of the Federal Rail Safety Act.
Since the FRSA whistleblower protections were enacted in late 2007, OSHA has received 900 complaints, two-thirds of which involve retaliation against workers who report on-the-job injuries. Such abuse has a chilling effect on the willingness of workers to report injuries and safety concerns, and violates the FRA's injury reporting regulations. The FRA and OSHA have sent a joint letter to railroads highlighting this troubling trend, and their Memorandum of Agreement confirms it will not be tolerated. In the words of OSHA Head Dr. David Michaels, "The safety of railroad employees depends on workers' ability to report injuries, incidents, and hazards without fear of retaliation. OSHA welcomes the opportunity to work with the FRA to protect these rights and make our nation's railroads a safer place to work." And FRA Head Joe Szabo stressed: "Securing a process that protects employees who report safety violations is critical to maintaining safety standards in the workplace."
Now, FRA inspectors will be trained to recognize FRSA violations and OSHA investigators will be trained to recognize FRA violations, and both will refer such violations to the appropriate agency for enforcement. OSHA will give the FRA copies of all the FRSA complaints it receives, and both agencies will coordinate to ensure the entire spectrum of rail safety regulations are enforced. It makes perfect sense, and will go far to advance the cause of rail safety nationwide. For OSHA's Press Release, click here. For the FRA's Press Release, click here. For the text of the Memorandum of Agreement, click here.
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.
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.
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.
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.
Every railroad will tell you its goal is "to provide safe trains that arrive on time." But when safety falls short of the slogan, often it is passengers who pay the price. The latest example comes from New Jersey Transit, where a passenger was dragged to death when train doors malfunctioned. But the law holds railroads accountable to the highest standard of care when it comes to providing for the safety of passengers. Whether it be train doors on NJ Transit, or platform gaps on LIRR, or mainline train collisions, holding railroads legally accountable for passenger injuries is the only way for the public to enforce rail safety standards.
Starting in March, commuter rail cars must be built with stronger front-end frames to better protect passengers during collisions. click here This is good news, but underscores the importance of avoiding collisions in the first place. How? Rail workers are the eyes and ears of safety on the tracks. If they hestitate to raise safety concerns for fear of management retaliation, we all are at risk. But two new laws protect railroad workers (FRSA) and subway workers (NTSSA) who raise safety concerns. Enlightened railroads should spread the word among their employees and welcome any and all safety "complaints." For the sake of rail safety, railroads have got to stop treating such workers as malcontents worthy of retaliation. And if workers invoke their protections under the FRSA and NTSSA, that will begin to happen.
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.
The civil penalties for discrimination just got steeper and more painful for Metro North Railroad and Long Island Railroad. Metro North and LIRR now are subject to new penalties of up to $100,000 for violations of New York State's Human Rights Law. N.Y. Exec. Law Section 290 et seq.
New York's law prohibits discrimination in employment based on disability, age, sex, or race. Now, for conduct occurring after July 6, 2009, Metro North and LIRR are exposed to penalties of $50,000 for such discrimination and up to $100,000 for discriminatory acts that are willful, wanton, or malicious. These civil penalties may be demanded in civil lawsuits brought by railroad employees, and apply not only to the Railroad but to individual supervisors and managers.
The New York Commissioner of Human Rights declared "this amendment to our law will provide the Division with a very powerful tool to fight discrimination." Press Release. And how. So Metro North and LIRR railroad managers beware, your decision to discriminate will cost you dearly.
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.
Some people just don't get it. CSX Transportation managers definitely fall into that group. In a lengthy Investigative Report released in March of 2008, the Federal Railroad Administration put CSX on notice that its management culture of harassment and intimidation intended to dissuade employees from reporting injuries had to stop. In response, CSXT made numerous representations to the FRA promising to change its behavior.
But guess what? The complaints of harassment and intimidation just kept flowing in to the FRA as if nothing had happened. By January of 2009, the FRA had had enough. On January 16th, the Acting Administrator of the FRA, Clifford C. Eby, issued a blistering three page letter to CSX Transportation President and Chief Executive Michael Ward. Eby pointed to the ongoing complaints despite the CSX's list of promises, and concluded: "It is clear that CSXT has failed to adequately address its culture of harassment and intimidation. . . . CSXT has not yet fulfilled its commitments made to FRA regarding harassment and intimidation. . . . the evidence shows that CSXT's response has been inadequate. In order to truly prevent any more instances of intimidation, CSXT must put forth a sustained good-faith effort to change its culture." For the FRA 01/16/09 letter, click here .
Clearly, the FRA's patience has run out. If CSX doesn't change its hostile management culture and change it quick, the FRA will step in and slap a compliance order on the CSX, putting the daily actions of CSX managers and supervisors under FRA oversight.
Meanwhile, whenever a CSX manager intimidates or retaliates against an injured employee, the new amendments to the Federal Railroad Safety Act allow that employee to file a FRSA retaliation complaint with OSHA's Whistleblower Office. And if OSHA does not promptly resolve the complaint, the employee can jump into federal court and have a jury award punitive damages of up to $250,000 against CSX. If the number of FRSA complaints coming out of places like CSX's West Springfield Yard in Massachusetts is any indication, federal juries are going to be very, very busy awarding punitive damages against railroads like CSX.
So while changing CSX's hostile management culture may be a tough nut to crack, the FRA and FRSA are like the pincer arms of a nutcracker, and CSX's nut is now caught firmly in that nutcracker's grip. With the increasing pressure being exerted by the FRA and the FRSA, it is only a matter of time before CSX's nut cracks wide open.
As the saying goes, knowledge is power. Here's an amazing new law that every rail worker should know about. The Federal Railroad Safety Act (FRSA), 29 U.S.C. Section 20109, hands employees a shield and a sword to fight back against rail managers who heretofore have retaliated against workers with impunity.
The FRSA prohibits retaliation whenever employees engage in certain "protected activity." For example, when a worker reports an on-the-job injury or occupational illness, the railroad is now prohibited from discrimination or retaliating in any way against that worker. Now, if an employee reports his own or a co-workers on-the-job injury and then his railroad disciplines, reprimands, fires, lays off, demotes, intimidates, denies promotion or benefits, or in any other way retaliates against that employee, the employee can file a complaint with OSHA that ultimately can lead to a federal court jury award making the employee whole and awarding punitive damages of up to $250,000.
This is the first time that rail workers have had the potential to win punitive damages against their employer railroad. Punitive damages are designed to "send a message" to a defendants by punishing them for a pattern of unaccepatable conduct. When a railroad retaliates against employees who report injuries on a system-wide basis, this new FRSA law allows juries to impose punitive damages that will discourage the railroad from continuing its course of retaliatory conduct.
There is a very short window of days within which employees can file their initial OSHA complaint: 180 days from the time the railroad indicates a desire or intent to discipline the employee. For example, this means 180 days from the date a railroad notifies a worker that it will be conducting a disciplinary hearing or trial. Failure to file the OSHA complaint within that 180 days is fatal to the worker's claim.
When an employee invokes this new law, it is as if he dons a suit of armor against any future retaliation. It protects him against any future attempt by his railroad supervisors or managers to get back at him for filing the complaint. And his co-workers who talk to OSHA about the complaint also gain the same suit of armor protecting them from such future retaliation. This is true even if the original OSHA complaint does not result in any formal action against the railroad. It is true even if the worker's injury does not qualify as a FELA injury. So this really is a game changing law that helps level the playing field for rail workers, and every employee should be familiar with it.
Welcome to Train Law Blog, where all things of legal interest to railroad employees and rail labor representatives are considered.
Railroad workers live in a subculture governed by a melange of esoteric federal statutes and agencies most people (and attorneys) have never heard of: the Railway Labor Act (RLA) and the National Mediation Board (NMB); the Federal Railroad Safety Act (FRSA) and the Federal Railroad Administration (FRA); the Federal Employers' Liability Act (FELA) and Safety Appliance Acts (SAA); the Railroad Retirement Board (RRB); and the Family Medical Leave Act (FMLA). As a result of these special laws, the labor, safety, pension, and job injury issues that arise for railroad employees are unique. This blog will highlight developments in the realm of railroad law and discuss how they affect the lives of railroad workers and rail labor representatives. From rail safety to railroad accidents and from collective bargaining to railroad strikes, if it is of interest to railroad people, this blog will look at it.