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

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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