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

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 Railroad 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 railroad 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. Click here for OSHA's official Merit Finding regarding 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 attorney 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.

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.

Stay tuned for OSHA's official press release on these cases. 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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