Federal Court Decision Analyzes "False" and "Late" Injury Reports

An important district court decision spells out how to analyze discipline based on allegedly "false" or "late" injury reports. And also you can add it to the growing list of cases rejecting the hapless "election of remedies" defense still being raised by railroads in Federal Rail Safety Act cases.

Election of Remedies
After Track Department employee Thomas Ray reported a work related injury, the Union Pacific Railroad charged him with the late reporting of a false injury, conducted the usual show trial, and fired him. His union pursued a Public Law Board arbitration under the Railway Labor Act, and almost three years later the arbitrator reinstated Ray with no back pay.

Meanwhile, Ray had filed a FRSA Section 20109 whistleblower protection complaint and opted to go into federal district court. Union Pacific filed a motion for summary judgment, arguing the case should be dismissed because the union's RLA arbitration constituted an "election of remedies."

U.S. District Judge Robert W. Pratt rejected the Railroad's "unconvincing" arguments. He endorsed the ARB's Mercier decision and found it is entitled to Chevron deference. He also endorsed the Reed and Ratledge federal court decisions, ruling that an employee's "FRSA claims are not barred by the election of remedies provision of the FRSA merely because he elected to pursue an enforcement action under the RLA for rights that substantially arise under the collective bargaining agreement."

False and Late Injury Reports
Judge Pratt's well reasoned decision also is notable because it spells out how to analyze whether an employee's injury report is "false" or "dishonest" for FRSA purposes:

even assuming the employee was dishonest with the Railroad on one occasion or another, the relevant inquiry remains whether, at the time he reported his injury, he genuinely believed the injury he was reporting was work-related. . . the focus of the good faith requirement when reporting injuries is on the reporting itself, not on all of an employee's interactions with his employer. . . . Union Pacific's arguments that it had "ample basis to discipline" Ray and "acted reasonably in finding Ray guilty of late reporting and dishonesty" misses the mark. This is not a PLB matter but rather an action under the FRSA, which evaluates only whether Ray's filing of a work-related injury report was a contributing factor in the Railroad's adverse disciplinary decision. Indeed, even if dishonesty and late reporting comprised 99.9% of the reason Union Pacific discharged Ray, his FRSA actions would still be viable because his injury report could still have been "a contributing factor" in the disciplinary action.

This confirms the "in whole or in part, even to the slightest degree" causation standard of the FELA applies with equal force to the FRSA. And Judge Pratt stressed "contributing causation for purposes of the FRSA analysis is presumed in situations where the employee's protected activity and the adverse action are inextricably intertwined." And such is the case in false or late injury reporting situations: "if Ray had not reported the alleged work-related injury, Union Pacific would not have undertaken an investigation into either the honesty of Ray's statement about his injury or the timeliness of his injury report, and he would not have been terminated."

Bottom line? Under the FRSA, there is no such thing as "false" or "late" injury reports. When the railroad's decision to discipline is set in motion by an employee's reporting of an injury, FRSA causation is presumed. And managers who fire a worker because his injury report was "false" or "late" can be held personally liable for violating the FRSA. For the full text of Ray v. Union Pacific Railroad Co., click here.

Announcing A One-Stop Resource For Rail Whistleblowers

A new web page for all things concerning the rights of railroad whistleblowers is now available on line. Go to "Rail Whistleblower Resources" for everything you need to know about the Federal Rail Safety Act. In addition to a "Summary of Rail Whistleblower Protection" and "Special FRSA Legal Standards," you will find the leading FRSA case law divided by subsection and organized by federal, ARB, ALJ, and OSHA decisions. There also are sections on Election of Remedies, Punitive Damages, Attorney Fees, and much more. To receive automatic updates on breaking FRSA developments, enter your email address in the free subscription box at Train Law Blog

ARB And Federal Courts Both Embrace Favorable FRSA Legal Standards

The federal courts and Administrative Review Board now are moving in lock step regarding the employee friendly legal standards applicable to FRSA complaints. Building on the landmark Araujo v. New Jersey Transit Rail 708 F.3d 152 (3rd Cir. 2013) federal circuit court decision, the ARB in Hutton v. Union Pacific Railroad Company confirms that the FRSA's "contributing factor" element is satisfied whenever the chain of events leading to an employee's discipline would not have begun without the employee reporting an injury. In other words, if the discipline is based on an investigation that was begun only as a result of the employee reporting an injury, then the reporting of the injury constitutes a "contributing factor."

In Hutton, the chain of events that led to the employee's termination would not have commenced if the employee had not filed an injury report. The ARB ruled that fact alone is enough to satisfy the "contributing factor" element. And in so doing, the ARB also underscored that no proof of retaliatory animus is required in FRSA cases, and that a railroad's "legitimate business reason" is not a defense. Here are some excerpts from this important ARB decision:

Although the ALJ stated that the chain of events leading to Hutton’s termination would likely never have occurred had he not reported his injury, the ALJ determined that this was not the test for contributory factor under the FRSA. This was error. The ARB has repeatedly ruled that under certain circumstances a chain of events may substantiate a finding of contributory factor. Compounding his error, the ALJ determined that no witness demonstrated “animosity” against Hutton, suggesting that Hutton was required to prove retaliatory animus or motive. Neither motive nor animus is a requisite element of causation as long as protected activity contributed in any way – even as a necessary link in a chain of events leading to adverse activity.

The circumstances presented here are analogous to the facts in DeFrancesco v. Union RR Co., in which we considered the application of the FRSA to the discharge of an employee who reported a work-related injury. In DeFrancesco, the employee reported his injury, which led to an investigation into his disciplinary history and prior injury reports, and the investigation resulted in the employee’s suspension. . . . we held that if DeFrancesco had not reported his injury, the company would not have conducted the investigation that resulted in the discipline. We concluded that DeFrancesco’s injury report was a contributing factor in his suspension, and we remanded the case to the ALJ to determine whether the respondent could show by clear and convincing evidence that it would have suspended DeFrancesco in the absence of his protected activity

The ALJ appeared to base his dismissal solely on a finding that Hutton committed a dismissible offense (failure to attend investigative hearing), similar to the legitimate business reason burden of proof analysis that does not apply to FRSA whistleblower cases. Under the FRSA whistleblower statute, the causation question is not whether a respondent had good reasons for its adverse action, but whether the prohibited discrimination was a contributing factor “which, alone or in connection with other factors, tends to affect in any way” the decision to take an adverse action.

Bottom line is, no matter what the forum, railroads cannot escape the application of the FRSA's extremely employee friendly legal standards.

More FRSA Railroad "Defenses" Shot Down

Two recent decisions, one from a federal district court and the other from the Administrative Review Board, reject several of the defenses railroads have raised against Federal Rail Safety Act whistleblower retaliation cases.

Adding a FRSA Count to an FELA Complaint is Allowed

In Battenfield v BNSF Railway Company, Burlington Northern failed to prevent an injured employee from amending his FELA complaint to add a FRSA retaliation count. The Railroad raised the discredited argument that the worker's use of his CBA procedures to challenge his termination constituted an "election of remedies" that precluded a FRSA claim. The federal district judge rejected that argument, relying on the ARB's Mercier and Koger decision and the related decision by the District Court in Norfolk S. Ry. Co. v. Solis.

The Solis decision drew an important distinction between the remedies sought under the FRSA and a CBA: "In Koger's case the unlawful act alleged under the FRSA was a dismissal in retaliation for reporting his injury. The unlawful act alleged in his RLA Section 3 arbitration was dismissal in violation of his rights under the CBA concerning his responsibility for the accident." This critical distinction highlights the fallacy inherent in the argument that a CBA proceeding precludes a FRSA complaint.

An Ultimate Decision Maker's Lack of Knowledge of FRSA Protected Activity Is No Defense

Railroad's often try to argue that because the manager who made the ultimate decision to discipline was not aware of the employee's FRSA protected activity, there can be no violation of the FRSA. In Rudolph v. National Railroad Passenger Corporation, the ARB makes it clear that "defense" is a dead loser:

to focus on the knowledge possessed by the final responsible decision-maker constitutes error as a matter of law. Proof that an employee's protected activity contributed to the adverse action does not necessarily rest on the decision-maker's knowledge alone. It may be established through a wide range of circumstantial evidence, including the acts or knowledge of a combination of individuals involved in the decision-making process. Proof of a contributing factor may be established by evidence demonstrating "that at least one individual among multiple decision-makers influenced the final decision and acted at least partly because of the employee's protected activity."

This includes not just lower level supervisors, but also the attorneys within a railroad's own legal department. In Rudolph, the deciding manager's "decisions and action were based on the advice of attorneys within Amtrak's legal department, who surely were aware of Rudolph's protected activities." Thus the ARB held that the legal department's "knowledge is imputed to [the deciding manager]."

Intervening Events Do Not Necessarily Break FRSA Causal Connection

In Rudolph, the ARB confirmed that:

an "intervening event" does not necessarily break a causal connection between protected activity and adverse action simply because the intervening event occurred after the protected activity. The employee's burden of proving contributory causation will be met even if the railroad also had a legitimate reason for the unfavorable employment action against the employee. Again, proof of causation for "contributing factor" is not a demanding standard. The employee need not prove that his or her protected activity was the only or the most significant reason for the unfavorable personnel action. It is enough that an employee establish that the protected activity in combination with other factors affected in any way the adverse action at issue.

Thus, the only way an intervening event can help a railroad is if the railroad proves by clear and convincing evidence that, due to the intervening events, it would have taken the same adverse action even if the employee had not engaged in the protected activity.

And so it goes. The mannequin dummies the railroads keep propping up as defenses against the FRSA just keep getting knocked flat by judicial decisions.
 

Ground Breaking FRSA Attorneys Fee Decision

The first federal Federal Rail Safety Act jury trial has resulted in an award of attorney fees based on the highest hourly rate in the history of the District Court. This Decision is important because it confirms that attorneys who successfully prosecute FRSA cases will receive top dollar compensation for all their time and efforts.

When a railroad loses a FRSA case, in addition to paying punitive damages, emotional distress, and economic losses, it also must pay the fees generated by the employee's attorney. Such "fee-shifting" is a penalty designed to increase the incentive of railroads to stop retaliating while encouraging skilled lawyers to prosecute any violations of the law.

The focus of every fee award decision is on the qualifications and performance of the attorney requesting the fees. In the case of Barati v. Metro North Railroad, that attorney would be me. So self-effacement is not an option (or, to paraphrase Groucho Marx, "modesty flies out the door when attorney fees come innuendo"). Here is the federal judge's explanation for why she ordered the highest hourly rate in the District:

Attorney Goetsch is undeniably a leading specialist in the law governing railroad employees' rights, and his longstanding and highly developed practice makes him more efficient, creative, and effective for his railroad employee clients than an attorney of similar trial experience in federal litigation but without the benefits of his specialization. Based on Attorney Goetsch's experience, his success in this unique case, and the case law evidencing a rise in the prevailing rate, the Court finds that an hourly rate of $525 for his work on this case is reasonable and fulfills the purpose of federal fee shifting statutes to incentivize capable attorneys to take on meritorious cases under the FRSA.

In arriving at the lodestar rate of $525, the Court took into account "Attorney Goetsch's exceptional performance in being the first attorney to try a FRSA case to a successful verdict" and the fact that "Attorney Goetsch's practice transcends his local market and competes on a nationwide basis."

The Court refused to "apportion the requested fees between the FELA and FRSA claims" because "the plaintiff's FELA and FRSA claims were inextricably intertwined in that they both relied on the same core facts relating to the circumstances of plaintiff's injury and the railroad's response to that injury." Finally, the Court also stressed that "the language of the FRSA does not limit the recovery of expert witness fees in any way" and requires the payment of all the fees generated by an expert witness.

This Decision is a must read for anyone interested in claiming FRSA attorney fees or facing the prospect of paying them. For the full text of the Barati v. Metro North Railroad attorney fee award Decision, click here.

First FRSA Jury Verdict Upheld With Landmark Damages Decision

One year ago I tried the first FRSA federal jury trial in the nation for my client Andy Barati. The U.S.District Judge who oversaw that trial now has upheld the jury's verdict in full. In a 16 page landmark Decision, Judge Janet Bond Arterton rejected the Railroad's arguments that the jury's award of maximum punitive damages was excessive and that emotional distress damages should not be available in Federal Rail Safety Act cases.

Punitive Damages
The FRSA has a statutory cap of $250,000 for punitive damages. But as is the proper practice, the jury was not informed of that limit and was allowed to award the amount of punitive damages it felt was just in light of "the degree of reprehensibility of the defendant's misconduct." The Barati jury awarded $1 million in punitive damages. As Judge Arterton explained, that award was supported by the evidence:

Here, by their award of four times the statutory maximum, the jury registered their measure of reprehensibility to underscore their finding that the Railroad's conduct was in reckless disregard of Mr. Barati's safety and FRSA rights. Their conclusion was supported by the evidence that the Railroad singled Barati out for discipline for a safety violation. The jury also had evidence that Metro North's termination of Barati was contrary to its written policies and FRA regulations, was a self-serving effort to discourage employee injury reporting in order to keep its injury and lost workday statistics low, violated Metro North's own obligation to accurately report employees' on-the-job injuries and resulting lost work days, and contravened Metro North's "safety statement" that "we are committed to the safety of our employees and our customers," and "we are determined to provide a work environment where all employees work safety."

Accordingly, the Court found the maximum punitive damages amount of $250,000 "does not violate due process" because it was fully justified by the evidence.

Emotional Distress
After noting "the issue of whether compensatory damages for emotional distress are recoverable under the FRSA appears to be one of first impression," the District Court went on to hold "the Court concludes that damages for emotional distress are available under the FRSA." Judge Arterton explained that the term "compensatory damages" includes both "pecuniary" and "non-pecuniary" damages, and that "non-pecuniary compensatory damages includes compensation for bodily harm and emotional distress, and are awarded without proof of pecuniary loss." The plain language of the FRSA text controls, and "in the absence of any indication from the statutory language of an intention to limit 'compensatory damages' to less than its generally accepted definition, the Court concludes that the FRSA permits recovery for emotional distress."

Expert Testimony
The plaintiff's expert was George Gavalla, a former Head of the FRA's Office of Safety. The Court flatly rejected the Railroad's argument that his expert testimony was "unduly prejudicial." Gavalla testified about the FRA imposed standards of care governing every railroad's treatment of employees who report injuries. Gavalla also testified about the "categories of conduct" the FRA identifies as violating the regulatory prohibition against the "harassment or intimidation of persons calculated to discourage or prevent the reporting of injuries":

The categories he identified included: "singling out employees who are injured for disciplinary action," disciplining employees who are injured on the job because of safety violations while other employees who commit the same safety violations and are not injured are not disciplined, and having management or railroad officials "threaten or recommend to employees that they're better off not reporting an injury or an accident." Mr. Gavalla spoke of these "categories of conduct" in a general manner, without providing any opinion as to whether Metro North had or had not engaged in any such conduct. That testimony came from Metro North's own employees which focused specifically on Metro North's safety regulations, policies, and "culture." . . . Given the testimony about Metro North's own safety rules, reporting policies, and disciplinary practices, juxtaposed with the general testimony provided by Mr. Gavalla about the FRA's role in investigating railroad workplace safety and the importance of accurately reporting work-related injuries, it is clear that Mr. Gavalla's testimony was proper and not unfairly prejudicial to Metro North.

So, hats off to Andy Barati for standing up and asserting the FRSA right of all railroad workers to freely report injuries without fear of retaliation. No doubt this will be the first of many jury verdicts responding to the abusive hypocrisy of railroads with the maximum amount of punitive damages. For the full text of Barati v. Metro North Railroad, click here.

FRSA Alert! Landmark Federal Appeals Court Decision Clarifies Legal Standards

The law governing Federal Rail Safety Act retaliation complaints just got a whole lot clearer. In a precedent setting decision, a United States Circuit Court of Appeals has resoundingly confirmed the remedial purpose of the FRSA while clarifying the employee-friendly legal standards that apply to all FRSA complaints. As a result, Anthony Araujo v. New Jersey Transit Rail is mandatory reading for every railroad employee, union rep, manager, OSHA investigator, or attorney who needs to understand and apply the FRSA.

Here are just a few excerpts from this game-changing decision.

Remedial Protective Purpose
 "The purpose of the FRSA is to promote safety in every area of railroad operations."
"The rail industry has a long history of under reporting incidents and accidents, and railroad labor organizations have frequently complained that harassment of employees who report injuries is a common management practice."
"The intent of the FRSA is to ensure that employees can report their concerns without the fear of possible retaliation or discrimination from employer railroads" and "by amending the FRSA, Congress expressed an intent to be protective of plaintiff-employees."

True Meaning of "Contributing Factor"
"The railroad employee need only show that his protected activity was a 'contributing factor' in the retaliatory discharge or discrimination, not the sole or even predominant cause. In other words, 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." This test means an employee does NOT have to prove "his protected conduct was a significant, motivating, substantial, or predominant factor in an adverse personnel action." This is consistent with the "in whole or in part" language used in the text of the FRSA statute, and means that if the protected activity played any part at all, even to the slightest degree, then it is a "contributing factor."

No Need to Prove Retaliatory Motive
"A railroad employee need not demonstrate the existence of a retaliatory motive on the part of the supervisory employee taking the alleged prohibited personnel action in order to establish that his disclosure was a contributing factor to the adverse personnel action."
"We note the fact an employee need not ascribe a motive to the supervisor or manager greatly reduces the employee's burden in making a prima facie case. However, we believe this reduced burden is appropriate in FRSA cases. We note that the legislative history shows that Congress was concerned that some railroad supervisors intimidated employees from reporting injuries to the FRA."

Meaning of Disparate Treatment

Even if an injured employee violates a Rule by following a common practice, the railroad nevertheless violates the FRSA if it disciplines that injured employee after ignoring other employees who followed the same practice. For example, in Araujo, the Court noted "it was common practice for conductor-flagmen not to talk to the electrical linemen, and thus be unaware of the extent of the catenary power outages" but that "no other conductor-flagmen were disciplined for violating any rules" due to following that practice. "While the facts in the record may show that Araujo was technically in violation of written rules, they do not shed any light on whether the Railroad's decision to file disciplinary charge was retaliatory." Why? Because the key is whether the Railroad treated Araujo disparately. As the Circuit Court stressed, the fact Araujo was the only flagman involved in a fatal incident does not matter: "while Araujo may have been the only conductor-flagman to have been on duty during a fatal accident, it is not appropriate to put him in a class by himself, and not compare him to other conductor-flagmen who did not know about catenary outages but were not on duty during fatal accidents."

A Railroad's Burden of Proof Is Tough to Meet

The Railroad's burden of proof is much higher than an employee's. Once the employee proves his prima facie case by a mere preponderance of the evidence, "the burden shifts to the railroad to demonstrate by clear and convincing evidence the railroad would have taken the same unfavorable personnel action in the absence of the protected activity." "Clear and convincing evidence" is just below "proof beyond a reasonable doubt" and way above a mere preponderance of the evidence. The Circuit Court noted that "for employers, this is a tough standard, and not by accident. . . . the standard is 'tough' because Congress intended for railroads to face a difficult time defending themselves, due to a history of harassment and retaliation in the industry."

McDonnell Douglas Burden Shifting Does NOT Apply to FRSA Cases
"The FRSA burden shifting is much more protective of plaintiff-employees than the McDonnell Douglas framework."
"It is worth emphasizing that the FRSA's burden-shifting framework is much easier for an employee to satisfy than the McDonnell Douglas standard." In order "to emphasize the steep burden that railroads face under the FRSA," the Circuit Court pointed out that it is not enough for a railroad to "articulate a legitimate, non-discriminatory reason for the adverse action." So, what would be a valid defense under the McDonnell Douglas standard fails in a FRSA case.

More on the ramifications of this landmark decision later. But for now, hats off to my client Tony Araujo for having the courage to stand up and fight for his rights. All railroad employees should take heart knowing that Congress and now the federal courts have declared that the FRSA must be liberally interpreted and applied so as to fully protect all employees who report injuries. For the full text of this landmark decision, click here. For more information on the FRSA, click here.

ARB Rules The Mere Filing Of A Charging Letter Constitutes FRSA Adverse Action

The old English Common Law had a phrase for the argument: "de minimis non curat lex" ("the law does not concern itself with trifles"). But unfortunately for American railroads, the U.S. Department of Labor's Administrative Review Board has emphatically rejected the application of that argument to violations of the Federal Rail Safety Act.

The facts of Laura Vernace v. PATH Rail demonstrate the absurd lengths to which railroads will go in their attempts to rationalize retaliation against injured workers. Laura was a Signal Tester for PATH working in the Relay Room below the World Trade Center when she had to sit down on a chair to fill out FRA forms (full disclosure: I am the attorney who represented Laura). She chose a normal looking office chair on rollers. However, after she sat down, the backrest unexpectedly collapsed and the chair shot out from under her, causing her to fall backwards and strike her head on the concrete floor.

Laura duly reported the injury, and three weeks later received a charge letter accusing her of violating safety rules because she "failed to exercise constant care and utilize safe work practices to prevent injury to yourself when you did not inspect a chair." She was ordered to attend an investigative hearing, but the hearing was not held and then one year later PATH dropped the disciplinary charges.

Laura filed a FRSA Complaint alleging the mere filing of a charge letter, without more, constitutes an adverse action. OSHA agreed, and ordered punitive damages. PATH objected, and a de novo trial was held before ALJ Judge Theresa C. Timlin, who issued a detailed Decision explaining why the Railroad's "intimidating" and "threatening" conduct violated the FRSA and warranted punitive damages. PATH appealed to the ARB, which resoundingly affirmed Judge Timlin:

Congress re-emphasized the broad reach of FRSA when it expressly added "threatening discipline" as prohibited discrimination in section 20109(c) of the FRSA whistleblower statute. . . . Where termination, discipline, and/or threatened discipline are involved, there is no need to consider the alternative question whether the employment action will dissuade other employees.

PATH unpersuasively challenges the ALJ's factual finding of causation by arguing that it initiated a disciplinary investigation only because of the allegedly unsafe use of a chair (sitting on it) and not because Vernace reported an injury. As the ALJ explained, this clever distinction ignores the broad and plain language of the statute and regulations. It also ignores FRSA's extensive legislative history citing the rampant practices of abuse and intimidation inflicted on railroad workers who reported or even attempted to report work injuries.

The ARB was just being nice when it used the phrase "clever distinction." "Laughably ridiculous" is more like it. But what really jumps out of the ARB's Decision is its directive that the FRSA must be interpreted and applied in order to put a stop to "the rampant practices of abuse and intimidation inflicted on railroad workers who report or even attempt to report work injuries." Roger that.

The take away? There is no such thing as a "de minimus" violation of the FRSA. Even if a railroad rescinds a charge letter and does not go forward with a hearing or impose any discipline, that does not cure its violation of the FRSA for filing the letter in the first place. For the full text of Laura Vernace v. PATH Rail, click here.
 

OSHA Again Exposes The Dark Side of Norfolk Southern Railway

The sad saga of Norfolk Southern's reckless disregard for the rights of its injured workers continues. You would think that after nearly a dozen adverse Federal Rail Safety Act Findings ordering millions in punitive and other damages, it could not get much worse for Norfolk Southern. And yet it does.

This time, OSHA comes right out and states in its official Finding that Norfolk's superintendent "was intentionally untruthful in the investigative hearing and to OSHA." Ouch. And as if lying to a federal agency was not enough, OSHA stated that Norfolk's

investigation and hearing process appear to have been intentionally orchestrated to support the decision it had already made: to terminate the Complainant's employment. . . . Complainant was subjected to an investigative hearing that was neither fair nor impartial. Norfolk directly targeted Complainant because of his injury report and humiliated him for filing the report. . . . Norfolk's immediate retaliation against this employee for reporting an on-the-job injury exhibited a reckless disregard for the law and total indifference to Complainant's statutorily protected rights. . . . Norfolk's continued callous disregard for Complainant's and other employees' protected rights under FRSA warrants significant punitive damages.

The facts fit the usual Norfolk Southern pattern: after doing a task a worker feels some discomfort but believes it will go away so does not report it as an injury; when the pain does not go away and increases, the next day he reports it as an injury; Norfolk Southern charges him with falsification of a personal injury, making false or conflicting statements relative to the injury, and failing to promptly report the injury; Norfolk holds the usual kangaroo court hearing and fires him. After firing him, Norfolk then offers him a "leniency waiver" which the financially desperate worker signs in order to keep his career. For earlier examples of Norfolk's misconduct, click here and here and here and here and here.

OSHA specifically found that such "waivers" are "illegal and contrary to FRSA." OSHA ordered Norfolk to expunge the waiver and pay, among other things: back wages, costs to purchase lost RRB credits, $125,000 in emotional distress, and $150,000 in punitive damages. Thanks to the FRSA, Norfolk is losing its war against its injured workers. For the full text of Timothy Mull v. Norfolk Southern Railway Company, click here.

Magical Thinking Does Not Release Pending FRSA Complaint

A federal district court has ruled that a General Release for a Federal Employers Liability Act  personal injury does not also release a pending Federal Rail Safety Act complaint. In Tagliatela v. Metro North Railroad, custodian Ralph Tagliatela was disciplined for the "late reporting" of an injury. He filed a FRSA complaint with OSHA, and while that investigation was pending signed a General Release for his FELA claim. A month later, OSHA issued its merit Finding, to which Metro North objected without citing the FELA Release. After Tagliatela opted into federal district court, Metro North filed a motion for summary judgment, arguing for the first time that the FELA General Release also released the FRSA complaint.

We already have pointed out that parties cannot release FRSA complaints without the express approval of OSHA. Click here for the reasons why. In Tagliatela, OSHA had not approved any settlement of the FRSA complaint it was investigating, and in fact issued a merit Finding after the FELA Release was executed. However, the district court did not actually rule on the legal necessity of OSHA approval because it found the terms of the General Release itself did not include the pending FRSA complaint.

The federal judge found "it is clear from the terms of the release and the parties' intent that Tagliatela's FRSA claim is not barred." The injury occurred on April 12, 2008, and the disciplinary charge was filed a couple weeks later, and the judge drew a critical distinction between when an injury claim arises and when a FRSA claim arises:

the release cannot be interpreted to mean that Tagliatela's FRSA claim arose from the injury he sustained when he twisted his knee on April 12, 2008. Rather, his FRSA claim can be interpreted as having arisen from his protected activity of reporting a workplace injury and not the injury itself. Further, the circumstances of the transaction confirm that it was not the parties' intent to release Tagliatela's FRSA claim. When the release was executed on May 29, 2009, the parties had been actively litigating Tagliatela's FRSA claim before OSHA for almost a year. . . . The failure to include any language expressly releasing Tagliatela's pending FRSA claim clearly evinces that it was not the parties' intent to release Tagliatela's FRSA claim. . . Since the release does not bar Tagliatela's FRSA claim, this Court need not address whether OSHA approval was necessary to effectuate any such release.

And even if a FELA release specifically references a pending FRSA complaint, it is OSHA's position that any "settlement" of a FRSA complaint by the parties has no force or effect unless and until it is expressly approved by OSHA.

So, what is the bottom line? Unless OSHA has explicitly approved the settlement of a FRSA complaint after reviewing the FELA release for fairness and compliance with DOL policies, it is magical thinking for the parties to pretend that a pending FRSA complaint is actually included in a FELA release. For the full text of the district court's ruling in Tagliatela v. Metro North Railroad, click here.

Discipline Based On Injury Investigation Information Violates FRSA

It's a common scenario: employee reports injury; railroad conducts investigation of the injury; railroad declares the employee's statements about the injury somehow to be "inconsistent" or "misleading" or "false" and fires him for dishonesty. Two recent decisions explain why that is a violation of the Federal Rail Safety Act.

In Henderson v. Wheeling & Lake Erie Railway, the Administrative Review Board clarifies the correct "contributing cause" analysis in such FRSA discipline cases, stressing that causation is presumed in situations where the employee's protected activity and the adverse action are "inextricably intertwined." When an employee is disciplined based on information he gives during his injury investigation, the ARB explained that the employee's disclosure of his injury is "inextricably intertwined with the investigations that resulted in his discharge because the content of those disclosures gave the employer the reasons for its personnel actions against the employee."

In other words, if the employee "had not reported his injury, the railroad would not have conducted the investigation that resulted in the discipline." Thus the reporting of the injury constitutes a contributing factor, and the railroad is liable unless it can prove "by clear and convincing evidence" it would have disciplined the employee if the employee had not reported the injury. This reinforces the ARB's precedent in DeFrancesco v. Union R.R. Co. For the full text of Henderson v. Wheeling & Lake Erie Railway, click here.

A recent ALJ decision also applies this principle. In Cain v. BNSF, Christopher Cain was terminated for "late reporting" and "misrepresenting" a work injury. The ALJ stressed "I find that the public policy and legislative intent for the FRSA assume that disputes as to the nature and extent of injuries are commonplace and should not be used as a pretext to discriminate."  For the full text of Cain v. BNSF, click here.

The take away? OSHA Whistleblower investigators do not view the facts through the lens of a FELA juror forced to decide between competing versions of how an injury occurred or its medical effect. If a railroad bases its decision to discipline an injured employee on statements it elicited from the employee during the injury investigation, that alone is enough for OSHA to find the reporting of the injury was a "contributing factor." The railroad then can escape FRSA liability only if it clears the extremely high hurdle of proving it would have imposed the same discipline on the employee if he had not reported an injury.

How To Name Names In FRSA Complaints

In addition to naming the railroad as a defendant in a Federal Rail Safety Act complaint, employees have the power to name managers or supervisors as individual defendants as well. And there are good reasons for doing so.

When OSHA, a judge, or a federal jury finds that a manager illegally retaliated against a worker in violation of the FRSA, it automatically creates an official record that can be used as a basis for the Federal Rail Administration to disqualify that manager from working in the railroad industry. For an explanation of how to permanently end the careers of such managers, click here.

And each violation of the FRSA exposes such managers to individual liability of up to $250,000 in punitive damages, plus unlimited economic and emotional distress damages and attorney fees and costs. So being named as an individual FRSA defendant means managers can be held personally liable for jury awards totaling hundreds of thousands of dollars.

However, it is important to list the names of any individual managers in the caption of the FRSA complaint filed with OSHA. That will ensure those managers also can be listed as individual defendants in any subsequent federal court jury trial.

So, from now on, managers who discipline injured workers have to ask themselves: "Is this retaliation really worth placing all my personal assets at risk?"

 

Railroad Injuries Gain A Triple Layer of FRSA Protection

It's official: injured railroad workers who seek medical attention now have a triple layer of protection against retaliatory discrimination. The U.S. District Court has joined OSHA and the Administrative Review Board in ruling that a railroad's denial, delay, or interference with the medical treatment of an injured employee is a form of "discrimination" prohibited by the Federal Rail Safety Act.

Union Pacific Track Foreman Rene Delgado was walking through a Yard when a discarded piece of rusty scrap metal cut his foot. He told his co-workers to start taking him to a nearby hospital, and called a supervisor to inform him he was on his way to the hospital. But a senior manager ordered Delgado not to go to the hospital and to return to the Yard office instead. Delgado complied, and then was sent to a railroad clinic rather than a hospital. The clinic instructed Delgado to stay off his feet, but instead he again was taken back to the Yard to do a "reenactment" of the incident. Management then told him to return the next day for light duty (to avoid reporting a lost time injury), but the next day his pain was so intense he went to a hospital, where he was immediately admitted for a badly infected foot that now required surgery.

The Union Pacific argued it is not "discrimination" when a railroad denies, delays, or interferes with an injured worker's medical treatment. But the federal district judge soundly rejected that argument:

The Court has no difficulty in construing the denial of medical treatment as discrimination against an employee who may potentially disclose a hazardous condition at the work site. . . . Seeking medical treatment for a workplace injury is likely, if not almost certain, to lead to the disclosure of the hazard that caused the injury, and in that light, a carrier's efforts to "deny, delay, or interfere" with an injured employee's pursuit of medical treatment can easily be understood to constitute a form of discrimination, and retaliation, against such an employee.

The Court therefore concludes that Section 20109 provides a private right of enforcement to an employee who alleges that a railroad carrier violated the provisions of subsection (c)(1) by denying, delaying, or interfering with the medical or first aid treatment of an employee injured during the course of employment.

Employees who disclose a hazard in the workplace are protected under FRSA subsection (b)(1)(A).  Delgado confirms that when employees notify the railroad of a work related injury they also are likely disclosing the workplace safety hazard that caused the injury.  So employees who report a work-related injury now have three layers of protected activity: subsection (a)(4) protects them for notifying the railroad of the injury; subsection (c)(1) protects them for seeking medical treatment for the injury ; and subsection (b)(1)(A) protects them for reporting the hazardous safety condition that caused or contributed to the on-the-job injury.

For the complete text of the federal district court decision in Delgado v. Union Pacific Railroad Company, click here.

Raising Cain: BNSF Slammed With Maximum FRSA Punitive Damages!

As predicted, the maximum amount of punitive damages is becoming routine in Federal Rail Safety Act cases. This past spring a federal jury ordered $1 million in punitive damages in the first FRSA jury trial. Now, an Administrative Law Judge has awarded the $250,000 statutory maximum in punitive damages against a railroad for firing a worker who reported an injury "in an untimely manner." And the ALJ so ruled even though OSHA had dismissed the complaint after its investigation found no merit.

The facts are all too common. BNSF sheet metal worker Christopher Cain was involved in a motor vehicle accident at work. He duly filed a railroad injury report but did not seek any medical treatment and continued working with no lost time. Three weeks later, his doctor indicated it was probable he suffered some bleeding in his lung due to the work injury incident. When, two months later, Cain informed the Railroad he was taking a medical leave due to a lung condition related to the injury report incident, his supervisors told him it would make his injury "FRA reportable" and "hurt the managers." He went on medical leave anyway, but after he returned to work his managers assigned him to the worst part of the Yard and then fired him for "failing to report injuries in a timely fashion."

After an exhaustive analysis of the facts and FRSA law, the ALJ Daniel F. Solomon ruled:

I find that several of BNSF's management employees conspired to defeat Cain's right to submit a medical claim and deprive him of his job. I also find that their assignment of Cain to the worst part of the Yard was wanton and willful and an equivalent to an intentional tort. . . .

I also find that public policy and legislative intent for the FRSA assume that disputes as to the nature and extent of injuries are commonplace and should not be used as a pretext to discriminate. Section 20109(a)(4) protects railroad employees from retaliation for notifying or attempting to notify the railroad of a work-related personal injury. That the FRA injury reporting regulations require the railroad to report injuries including the number of lost work days, and may be violated by a railroad that does not accurately report workplace injuries or the number of lost work days, does not impede a railroad employee's right under 20109(a)(4) to report the injury to the railroad without fear of retaliation.

The ALJ noted that punitive damages are "to punish unlawful conduct and to deter its repetition," with the amount based on the punitive damages "imposed in other cases for comparable misconduct." Noting that BNSF management "railroaded" Cain, ALJ Solomon awarded the statutory maximum of $250,000 in punitive damages. To top it off, BNSF now has to pay Cain's lawyers all of their attorney fees and costs.

So, despite a steady increase in the amount of FRSA punitive damage awards over the past four years, railroads have not changed their retaliatory ways. And until they do, we can all expect to see OSHA, ALJs, and juries awarding the $250,000 statutory maximum as a matter of course. For the complete text of Cain v. BNSF, click here.

Norfolk Southern's Injury Retaliation Costs Soar

Norfolk Southern Railroad's illegal practice of charging employees who report injuries with "false and misleading statements" is catching up with it. In the past three months, OSHA has ordered $2,154,000 in damages against Norfolk Southern for violating the Federal Rail Safety Act rights of seven employees. That is an average of $308,000 per violation, not even counting the cost of NS's own attorney fees. And experience teaches those FRSA damages will double or triple at the hands of judges and juries, with NS also paying well into the six figures for the attorney fees of both sides.

But apparently paying up to a million dollars per FRSA violation is worth it to Norfolk Southern so long as it can keep chilling the reporting of injuries by its employees. Here are excerpts from OHSA's official Findings in two of the most recent cases:

The evidence shows that Norfolk Southern intentionally presented an extraordinary and fraudulent theory that it was not physically possible for the employee to have sustained an injury in the manner he described. . . . On several previous occasions, OSHA has found that Norfolk Southern violated the whistleblower protection provisions of FRSA when it brought disciplinary charges against employees who reported workplace injuries, charged those employees with falsifying or making misleading or conflicting statements about their injuries, and terminated their employment.

For the full text of Kawa v. Norfolk Southern Railroad Co., click here. And here's what OSHA stated in Ratledge v. Norfolk Southern Railroad Company:

Norfolk Southern's retaliatory conduct towards employees who report injuries and/or illnesses has created a chilling effect in the workplace. On several previous occasions, OSHA has cited Norfolk Southern for violating the whistleblower protection provisions of FRSA. Norfolk Southern's continued callous disregard for employees' protected rights under FRSA warrants significant punitive damages.

For the full text of the Ratledge case, click here. In his Press Release regarding these two cases, Head of OSHA Dr. David Michaels stated:

Firing workers for reporting an injury is not only illegal, it endangers other workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury or possible future prevention can occur. Railroad workers must be able to report work-related injuries without fear of retaliation. . . . Railroads who break the law will be held accountable.

And at least for now, being held accountable for up to a million dollars per FRSA violation seems perfectly acceptable for Norfolk Southern as long as it can continue its culture of retaliation against workers who report injuries.

FRSA ALERT! Railroads Lose Power To Interfere With Injured Workers' Medical Treatment!

In a decision that will send shock waves reverberating throughout the railroad industry, railroad medical departments now are prohibited from doing anything that directly or indirectly interferes with the treatment prescribed by an injured worker's treating doctor for the entire period of medical treatment, not just immediately after an injury. Once again, thanks to the Federal Rail Safety Act, the balance of power is shifting from management to rail labor, and railroad medical departments will never be the same.

Here's the context. When a chair at his Metro North Railroad work place collapsed as he sat down, my client Anthony Santiago suffered an injury to his low back. Metro North ordered him to go to its Medical Department, which confirmed he had an occupational back injury and advised him to see an orthopedic physician. For two months Metro North followed its policy of paying the medical bills for occupational injuries. However, when a MRI scan confirmed Santiago had a herniated disc and his doctor prescribed treatment for the disc, Metro North's Medical Department immediately reclassified Santiago's occupational back injury as "non-occupational" and refused to pay for the treatment. As a result, Santiago suffered a four month delay in his prescribed treatment and was forced to pay $16,520 in medical expenses out of his own pocket.

FRSA Subsection (c)(1) states that " a railroad may not deny, delay, or interfere with the medical or first aid treatment" of an injured employee. OSHA found Metro North violated Santiago's subsection (c)(1) rights, but an Administrative Law Judge viewed the scope of (c)(1) as being narrowly limited to the initial medical treatment immediately after an injury, and dismissed the complaint. Santiago appealed to the Administrative Review Board, which reversed the ALJ in a precedent-setting decision confirming the broad scope of (c)(1).

The ARB spelled out the meaning of Subsection (c)(1)'s phrase "may not deny, delay, or interfere with medical treatment":

These are prohibitive words simply meaning to impede, slow down, or prevent medical treatment from moving forward or occurring. An act that causes medical treatment to be rescheduled necessarily means that the treatment was delayed. Any obstacle placed in the way of treatment necessarily results in interference. Denial means to refuse or reject a request for medical care.

The ARB confirmed that the term "medical treatment" means the entire period of an injured worker's treatment and recovery, and that the sweeping mandate of subsection (c) means railroads must stay completely out of the way of the treatment prescribed by an injured employee's medical providers:

The FRSA statute contemplates that the railroad carrier will stay completely out of the way of medical treatment, and if it does exactly that, it will not be liable for whistleblower retaliation if the independent medical treatment providers conclude that no more care is needed for the work injury. However, the instant that the railroad carrier directly or indirectly inserts itself into that process and causes a denial, delay, or interference with the medical treatment, causation for a violation is presumed. . . . In agreeing to pay for medical treatment for work injuries, a railroad cannot insert itself into the process and influence the level of care provided.

The ARB also affirmed the independence of the FRSA from the FELA:

FELA's requirement that an injured employee prove negligence does not foreclose the same employee from proving under section 20109(c) that the railroad violated a whistleblower protection provision. Certainly, there can be overlapping remedies common to both legal theories, but the FELA itself [at 45 U.S.C. Section 58] provides that nothing shall limit the liability of railroads or impair the rights of their employees under any other act of Congress. Thus, an employee who files a whistleblower complaint under the FRSA can also file a negligence claim under the FELA. A railroad's defense against an employee's FELA claims is a separate issue from those addressed in FRSA whistleblower claims.

Bottom line? Railroads can no longer interfere with the medical treatment of injured workers. Ever. In any way. The ARB's decision is binding on all OSHA investigators and ALJs nationwide. The balance of power has shifted, and now rests firmly in the hands of the injured worker and his treating doctors. For the full text of Santiago v. Metro North Railroad, click here.

Landmark Joint Letter Will Transform Rail Safety

The culture of rail safety will never be the same. In an extraordinary Joint Letter addressed to all the nation's railroads, the Heads of OSHA and FRA have thrown the switch that will direct the locomotive of rail safety from the old track of retaliation onto the new track of root cause remediation. Their Joint Letter signals the transition from a rail culture where the reporting of an injury is met with retaliation to a rail culture where the reporting of an injury is embraced as an opportunity to uncover and remedy the root cause of the injury. It is a clarion call to replace retaliation with root cause remediation. How? By abandoning abusive discipline and instead focusing on the prevention of future injuries through the elimination of all the hazardous conditions that combined to produce the injury.

The importance of this Joint Letter cannot be overstated. It is addressed to the Presidents of the Association of American Railroads, the American Short Line and Regional Railroad Association, and the American Public Transportation Association. It begins by pointing out that the success of our nation's rail safety programs depends on the complete and accurate reporting of all employee injuries and safety concerns. The Heads of OSHA and FRA then state:

We are writing to highlight a troubling railroad accident/incident reporting trend and to provide concrete way railroads can improve the safety of their workplaces and improve their compliance with Federal safety regulations and the FRSA. . . . Between August 3, 2007, and March 31, 2012, OSHA received 910 whistleblower complaints under FRSA's Section 20109. Approximately 63 percent of these complaints involve an allegation that a worker has been retaliated against for reporting an on-the-job injury. FRA and OSHA are very concerned about the high number of complaints, and that the number of whistleblower complaints is escalating.

Their Joint Letter goes on to explain how the disciplinary system must be used to promote, rather than undercut, safety:

To be effective, discipline needs to be assessed evenly and the punishment must fit the infraction. That is, for a given rule violation, similar punishment should be given to an employee who violated the rule without being injured as that given to one who was injured, and it must be appropriate punishment. The perception that injured employees are being singled out for discipline, while non-injured employees who violate the same rules are not disciplined, leads to the development of an organizational safety culture that may inadvertently suppress accurate reporting.

OSHA and FRA are also troubled by the number of whistleblower allegations involving discipline of employees for allegedly falsifying or making false, misleading or conflicting statements about their injuries. In several cases, OSHA's investigation found reasonable cause to believe that the employee did not provide false or misleading information and that the railroad's internal investigation did not support the charge. Discipline based expressly on an employee's injury report has a high potential to chill workplace injury reporting because it may lead employees to believe that anything they say about a workplace injury will be used against them.

We believe that the use of employee discipline as part of a railroad safety program may result in reducing the number of injuries reported by employees, but it will not ultimately succeed in reducing the actual occurrence of injuries. FRA and OSHA are concerned that if employees fear discipline and do not report an injury that has occurred, we all lose the opportunity to determine the root cause of the injury and focus on prevention.

The Joint Letter goes on to "strongly encourage" railroads to change their safety cultures, and points to improvements recently made by Amtrak to transition from a culture of retaliation to a culture of root cause remediation (more on that later).

This is a watershed moment in the history of rail safety. Historians will look back and mark this as the beginning of the end for the abusive culture of retaliation against rail employees who report injuries and safety concerns. With OSHA and FRA working in sync to enforce the FRSA's whistleblower protections, it now is just a matter of time before every railroad makes the transition from retaliation to root cause remediation. For the complete text of this landmark Joint Letter, click here.  To access the complete Library of FRSA information, click here

How To Get Hit With FRSA Punitive Damages

Norfolk Southern Railway is showing all of us how to get hit with big Federal Rail Safety Act punitive damages. Here is OSHA's explanation as to why it awarded record-breaking punitive damages against Norfolk Southern in two recent FRSA cases.

NS Engineer Kintner was fired after reporting an injury due to a tripping hazard in a locomotive. OSHA concluded:

the evidence in this case indicates that Norfolk Southern orchestrated its investigation into the circumstances surrounding Kintner's injury to support its pre-determined conclusion that Kintner falsified the injury, tried him in absentia, and terminated him because he reported a work-place injury. Kintner and other employees indicated that they are reluctant to report injuries because they fear that Norfolk Southern will suspend and eventually terminate their employment. Such egregious conduct by NS has created a chiling effect. In fact, NS has been cited by OSHA in several other instances for violating the whistleblower protection provision of FRSA by responding to reports of work place injuries in the same manner that it did here---i.e. by conducting an investigation and disciplinary hearing foreordained to find the employee falsified the injury and terminatino the employee despite evidence that the workplace injury occurred. Norfolk Southern's continued callous disregard for its employees protected rights under FRSA warrants significant punitive damages.

As a result, OSHA ordered NS to pay $150,000 in punitive damages and $50,000 for emotional distress. For the full text of Kintner v. Norfolk Southern Railway, click here.

Similarly, NS trackman laborer Morris was fired after he reported an injury arising out of an incident that involved his entire gang. OSHA found:

Norfolk Southern terminated Morris because he was the only employee who was injured and initiated a reportable injury filing, thereby marring NS's self-proclaimed stellar injury and illness rates. . . . Norfolk Southern's investigation and hearing process appear to have been intentionally orchestrated to support the decision it already had made to terminate Morris. . . . He was treated disparately as compared to other employees involved in the accident, and in fact was the only one terminated. NS directly targeted Morris because of his injury report and humiliated him for doing so. NS wanted to make him an example of what would happen if an employee reports an injury.

Noting NS's "retaliation exhibited a reckless disregard for the law and total indifference to its employee's statutorily protected rights" that "has created a chilling effect in the workplace," OSHA ordered NS to pay $200,000 in punitive damages and $100,000 for emotional distress. For the full text of Morris v. Norfolk Southern Railway, click here.

Thanks to the FRSA, Norfolk Southern's addiction to retaliation has become a very expensive habit indeed.  For more on the FRSA, click here.

OSHA Hammers Norfolk Southern Railway With Record Breaking Punitive Damages

Norfolk Southern Railway is learning the hard way that retaliation doesn't pay. Despite earlier warnings, it has continued its abusive course of conduct toward employees who report injuries. And so today OSHA issued a Press Release confirming record breaking punitive damage awards in three Federal Rail Safety Act cases: $200,000 + $175,000 + $150,000 = $525,000 in punitive damages alone, not including lost wages and attorney's fees for awards totaling over $800,000.

With these awards, OSHA has made it clear Norfolk Southern's pattern of filing bogus "false and conflicting statement" charges against injured workers will not be tolerated. In the words of Dr. David Michaels, the Head of OSHA:

Firing workers for reporting an injury is not only illegal, it also endangers all workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury can occur. To prevent more injuries, railroad workers must be able to report an injury without fear of retaliation. The Labor Department will continue to protect all railroad employees from retaliation for exercising these basic worker rights. Employers found in violation will be held accountable.

And the best news is, if Norfolk Southern doesn't pay these OSHA awards and reflexively appeals, we now know how juries react toward such unsafe abusive conduct by railroads: with visceral disgust and revulsion that produces even higher punitive damage and emotional distress awards.Click here for details of the first FRSA jury verdict.

OSHA Confirms The FRSA Protects All Railroad Workers Who Follow Their Doctor's Orders Not To Work

The case of my client Chris Bala established that the FRSA protects ALL railroad workers (not just employees with an on-the-job injury) from attendance discipline when they follow the orders of a treating doctor not to work  Why? Because safety trumps discipline. No one wants medically impaired railroad employees reporting to work against their doctor's orders solely to avoid absenteeism discipline.

No one except the American Association of Railroads. The AAR filed an amicus brief objecting to the Bala ruling, arguing that discipline trumps safety. But the United States Solicitor of Labor has weighed in with an amicus brief of its own confirming that FRSA Section (c)(2) protects ALL medically impaired railroad employees who follow their doctor's orders not to work, even workers who are injured off the job or have a non-work related medical condition.

The National Whistleblower Legal Defense Fund Center also filed an amicus brief in support of my client Chris Bala and all railroad workers who want to take the safe course and not attempt to perform their safety sensitive duties in a medically impaired condition. So here's hats off to OSHA and the NWLDFC for helping protect the safety of everyone affected by the operations of our nation's railroads. For the Whistleblower Protection Blog entry that has links to all the briefs in the Bala v. PATH appeal, click here.

More FRSA Developments

Important developments in the Federal Rail Safety Act just keep coming. Here are a couple.

OSHA has issued another punitive damages award against Metro North Railroad, this time for harassing an injured employee by interfering with his medical treatment and recovery. The Finding in Cortese v. Metro North Railroad is especially notable because it recognizes that (a)(4) gives OSHA jurisdiction to remedy a (c)(1) interference with medical treatment. In other words, interference with an injured worker's medical treatment is just another form of discriminatory adverse action that can be remedied under (a)(4). So Cortese is a sign OSHA has found a way to finesse any questions regarding the direct enforceability of (c)(1). From now on, any violations of (c)(1) can be remedied under the aegis of (a)(4). For the full text of OSHA's Finding, click here.

Here is a quote from OSHA's Press Release:

“Metro-North has exhibited an unacceptable pattern of penalizing workers who report injuries, interfering with their medical treatment and forcing them to work in violation of medical instruction,” said Robert Kulick, OSHA’s regional administrator in New York. “The whistleblower provisions of the Federal Railroad Safety Act were designed to prevent such behavior toward workers. We will continue to order corrective action whenever we identify this type of discrimination and intimidation.”

Also, for an interview regarding the significance of the "million dollar message" sent by the first FRSA punitive damages jury verdict, go to Virginia and North Carolina personal injury attorney Richard Shapiro's blog at InjuryBoard.


 

Two Major New Landmarks Dominate FRSA Landscape

Two new landmarks have appeared in the Federal Rail Safety Act landscape, one erected by a federal court jury and the other by OSHA's top policy makers.  Last week's $1 million punitive damages jury award for my client is indeed historic, but should not overshadow a recent seminal Memo by OSHA of equal importance.

The Memo is by Deputy Assistant Secretary Richard E. Fairfax, the second in command at OSHA who reports directly to Dr. Michaels. It is addressed to all OSHA Regional Administrators and Whistleblower program managers. It is a remarkable document that is required reading for any one concerned with the FRSA.

The Fairfax Memo begins by confirming the link between public safety and the reporting of injuries:

If employees do not feel free to report injuries, the employer's entire work force is put at risk. Employers do not learn of and correct dangerous conditions that have resulted in injuries, and ensuring that employees can report injuries without fear of retaliation is therefore crucial to protecting worker safety and health.

The Fairfax Memo "is intended to provide guidance to whistleblower investigative staff on several practices that can discourage employee reports of injuries and violate" the FRSA. It goes on to spell out "several practices that could discourage reporting and could constitute unlawful discrimination" in violation of the FRSA:

1. OSHA has received reports of employers who have a policy of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury. OSHA views discipline imposed under such a policy against an employee who reports and injury as a direct violation of FRSA.

2. In another situation, an employee who reports an injury is disciplined, and the stated reason is that the employee has violated an employer rule about the time or manner for reporting injuries. Because the act of reporting the injury directly results in discipline, there is a clear potential for violating FRSA. An employer's rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all.

3. In a third situation, an employee reports an injury, and the employer imposes discipline on the ground that the injury resulted from the violation of a safety rule by the employee. Several circumstances are relevant to determine if an employer is using a work rule as a pretext for discrimination against a worker who reports an injury. Does the employer monitor for compliance with the work rule in the absence of an injury? Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury? Vague rules, such as a requirement that employees "work carefully," may be manipulated and used as a pretext for unlawful discrimination. Where such general rules are involved, the investigation must include an especially careful examination of whether and how the employer applies the rule in situations that do not involve an employee injury. Enforcing a rule more stringently against injured employees than noninjured employees may suggest that the rule is a pretext for discrimination against an injured employee in violation of FRSA.

Thus the Fairfax Memo is a field manual for identifying the most common forms of discrimination against injured employees that violate the FRSA. For the complete text of the Fairfax Memo, click here.

Taken together, what is the meaning of these two major new FRSA landmarks?

For generations, railroad managers were free to play a private game stacked in their favor. When it came to disciplining workers who reported injuries, managers simply filed the charges and then formed a flying wedge that trampled the employee and his hapless union rep and ground them into the dirt. No outside party was allowed to interfere or intervene in this private ritual of abuse. But these two new landmarks confirm those days are over.

Now, thanks to the FRSA, a legion of OSHA investigators have infiltrated the playing field and are blowing the whistle on managers, trying to hold them accountable for their retaliatory conduct. And true to form, the managers have done their best to ignore those OSHA investigators, treating their Findings as mere nuisances to be reflexively appealed.

But now an amazing thing has happened. Because the FRSA allows employees to subject railroads to federal court jury trials, for the first time the private gates have opened and the public itself has flooded into the playing field, surrounding the managers. For the first time, the sunshine of jury trials is publicly exposing the abusive conduct of rail managers. And for the first time, rail managers are being subjected to the withering stare of citizens who have the power to express the outrage and disgust of the community by awarding punitive damages.

And jurors truly are disgusted by what they see. Disgusted by the smug arrogance of railroad managers who believe it is their inherent right to abuse injured workers with impunity. Disgusted by the recklessly unsafe culture of retaliation rail management hides behind the window dressings of safety. OSHA sees it clearly now, as evidenced by the Fairfax Memo. And jurors see it clearly as well, as evidenced by the million dollar message in the first FRSA jury verdict. A fundamental shift in power has occurred. The game has changed, and now managers who remain blinded by arrogance will be the ones trampled and ground into the dirt.

First FRSA Jury Awards $1 Million in Punitive Damages!

Yesterday, at the end of the first Federal Rail Safety Act jury trial in the nation, I asked the federal jury to send a message to every railroad in the country. An unmistakable message that singling out injured workers for discipline while ignoring management's role will not be tolerated. An unmistakable message that rail management's unsafe culture of retaliation must stop.

And send a message it did. The jury responded with a historic punitive damages award of $1 million, in a case where my client's only economic loss was $1,428 (for his lost wages from the 7 days he spent at the trial). More on the lessons of this historic verdict later, but the message is clear: juries hate railroads that discipline injured workers, and maximum punitive damages will be routine in every FRSA case, no matter how small the economic loss. 

For an article on this verdict, click here.  For more information on this powerful new law that is changing the landscape of rail labor relations, go to the FRSA Library.(and for automatic notice of breaking developments, enter your email address in the free subscription box to the left).

Dept of Labor Elevates Status of Whistleblower Office

In an encouraging sign to whistleblowers, the Department of Labor has elevated the status of its Office of the Whistleblower Protection Program (OWPP) so it now reports directly to the Head of OSHA, Assistant Secretary Dr. David Michaels. This puts whistleblower protection on an equal footing with OSHA's health and safety enforcement, and increases the OWPP's access to the resources it needs to accomplish its mission. It means the new Director of the OWPP, Sandra Dillion, now has the ear of Dr. Michaels and the Solicitor of Labor, giving her the ability to quickly resolve issues that previously would languish in lower level limbo. And she will preside over one of the few federal programs set to grow, with President Obama calling for a 39% increase in the OWPP's budget and the hiring of 37 new whistleblower investigators.

By giving whistleblower protection a priority, the DOL is moving forward with its commitment to strengthen the voice of employees in the workplace.  And it means more support for railroad workers who stand up and blow the whistle on rail management's culture of retaliation.  For the DOL Press Release announcing this restructuring, click here.

Two Decisions Clarifying FRSA Adverse Differential Treatment

 

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

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

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

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

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

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

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

How Not To Settle FRSA Claims

No matter what a railroad may try to tell you, a Federal Rail Safety Act claim under OSHA jurisdiction cannot be settled without the express written approval of OSHA. Here's why.

The FRSA itself states: "The rights and remedies in this section may not be waived by any agreement . . ." 49 USC 20109(h). And the regulations confirm that during OSHA's investigative phase, "the case may be settled if the Assistant Secretary, the complainant, and the respondent agree to a settlement." 29 CFR 1982.111(d)(1).

So what happens when there is a FELA General Release containing broad and unlimited language referring to the release of any and all matters? Can the railroad turn around and claim such a FELA Release waives any FRSA claims as well?

Short answer: no way. OSHA spells out what would happen:

If the parties do not submit their agreement to OSHA or if OSHA does not approve the agreement signed, OSHA must deny the withdrawal, inform the parties that the investigation will proceed, and issue Secretary's Findings on the merits of the case. The findings must include the statement that the parties reached a settlement that was either not submitted for review by OSHA or not approved by OSHA. 

Whistleblower Investigations Manual at Chapter Six, Section IV.D.4. So unless a FELA General Release specifically references a FRSA claim and has been approved by OSHA, it can not withdraw or bar any FRSA claim.

So what's a prudent attorney to do when a FELA Release has not been approved by OSHA? The best practice for all sides is either to exclude the FRSA entirely in body of the Release, or attach a rider to the Release along these lines:

Federal Rail Safety Act claims under the jurisdiction of OSHA’s Office of Whistleblower Protection cannot be withdrawn or settled without the express written approval of OSHA, and the parties hereby acknowledge that the attached General Release has not been submitted to OSHA and does not purport to waive any rights or remedies under the Federal Rail Safety Act.

The Escalating Cost of FRSA Violations

 

The damages for violations of the Federal Rail Safety Act just keep expanding. The latest record breaker goes against the Union Pacific Railroad: $175,000 in punitive damages and $100,000 for emotional distress, all for firing a conductor who reported a minor injury.

In addition to the immediate reinstatement, lost wages, and attorney fees ordered, this case is notable for the $100,000 in damages to compensate for the conductor's "distress, humiliation, depression, mental anguish, lessened self esteem, anxiety and embarrassment" resulting from the RR's actions. And also for the $175,00 in punitive damages, based on: the economic harm suffered by the employee; the fact the UP managers knew of the FRSA's prohibition against retaliation yet went ahead and retaliated anyway; and the UP's well established pattern of retaliation against employees who exercise their FRSA right to report work-related injuries.

So, hats off to Conductor Annen and her attorney for standing up and using the FRSA to expose the rottenness at the core of UP's management culture. For the full text of the Annen v. UP RR Merit Finding, click here.

FRSA Bars Any Attorney Fee Awards To Railroads

If a railroad worker wins his Federal Rail Safety Act complaint, the railroad has to pay all his attorney fees. But if a FRSA complaint fails, the railroad cannot recover any attorney fees or costs against the worker.

Administrative Law Judge Adele H. Odegard's decision in Vason v. Port Authority Trans Hudson (PATH) explains why: unlike the NTSSA, the FRSA does not provide for any award of attorney fees on behalf of a railroad. So don't let a railroad threaten you with the prospect of paying their attorney fees: it can never happen, even if your FRSA complaint fails.

Naming Names In FRSA Retaliation Complaints

Instead of naming the railroad, workers are free to name a manager as the defendant in a Federal Rail Safety Act complaint. And there are good reasons for doing so.

When a manager is singled out as illegally retaliating against workers, it is a form of public "shaming" that does not help his future career prospects. It also raises the unsettling potential for that manager to be held personally liable for any economic damages, thus making him think twice before retaliating again. And it creates an official record that can be used as a basis for a FRA disqualification of that manager from working in the railroad industry. For an explanation of how to disqualify such managers, click here.

So managers who retaliate should be prepared to suffer all the negative consequences of being personally named as the defendant in a FRSA complaint.

Judge Confirms Broad Scope of FRSA Adverse Actions

In an important decision clarifying the broad scope of adverse action under the Federal Rail Safety Act, Judge Theresa C. Timlin confirms that the mere act of filing of charges against an injured railroad employee is an unfavorable personnel action sufficient to support a FRSA violation.

The facts in Vernace v. PATH Rail are: after a signal tester reported an injury, the Railroad sent a disciplinary charge letter scheduling an investigation; however, the investigation hearing was never held, and the Railroad eventually dropped the charges.

The worker contended that the filing of charges scheduling a disciplinary hearing is in and of itself an adverse unfavorable personnel action, whereas the Railroad argued no adverse action took place because the employee was not actually disciplined in any way. OSHA ruled in the worker's favor, and then a full trial was held before Administrative Law Judge Timlin.

Judge Timlin began her analysis by pointing out that whistleblower laws such as the FRSA "consistently have been recognized as remedial statutes warranting broad interpretation and application." Indeed, the ARB stresses that the list of prohibited activities is quite broad, and includes reprimands (verbal or written), written warnings, and counseling sessions where the potential for future discipline is implied. And in fact the ARB holds that the scope of adverse action under whistleblower laws is even broader than the scope of adverse action under the Supreme Court's Burlington Northern v. White Title VII standard.

In ruling that the charge letter alone is a violation of the FRSA, Judge Timlin stressed that such action is not trivial:

an employer should never be permitted to deliberately single out an employees for unfavorable employment action as retaliation for protected whistleblower activity. . . .

The filing of charges against an employee is not de minimis harm. Those charges are the first step in a disciplinary process that has the potential to culminate in a warning, suspension, or termination. Once charges have been sustained and discipline meted out, the employee is then susceptible to a higher degree of punishment if he or she commits a subsequent offense. This is likely to have a chilling effect on reasonable employees, who may be dissuaded from filing injury reports for fear of being charged with safety violations and potentially being disciplined. Indeed, Complainant employee said she considered the charge letter and hearing to be very serious because she was afraid that money, lost time, and promotions were at risk due to the charges against her. . . .

The Railroad's contention that no adverse action occurred in this case because Complainant was never actually disciplined in contrary to the law. I find the filing of charges against Complainant which carried the potential for future discipline was an unfavorable personnel action.

Vernace v. PATH Rail at pages 24-27. For the full decision, click here. The moral is, once a railroad serves an employee with a charge letter, it cannot escape a FRSA violation even if it cancels the hearing and drops the charges.

When Rail Workers Can Recover For Outrageous Conduct

 A leading U.S. Circuit Court of Appeals has clarified when rail workers can recover damages for outrageous conduct by their employer railroad. Building on two cases that I handled (Metro North Railroad v. Buckley in the U.S. Supreme Court and Higgins v. Metro North Railroad in the Second Circuit), the Second Circuit Court of Appeals has declared that a worker can recover for a purely emotional injury (involving no physical impact) only if he or she was within a "zone of danger of physical impact."

 Goodrich v. LIRR involved an electrician who sought to recover under the Federal Employers Liability Act (FELA) for his emotional distress after a fellow worker intentionally posted his HIV positive status on a company bulletin board. The Circuit Court ruled that under the FELA the electrician could not recover because there was no physical impact or threat of physical impact involved. So no matter how outrageous the conduct, unless there is some physical impact or imminent threat of serious physical impact, under the FELA a railroad worker has no recovery for emotional distress.

But that is not the case if the worker is protected by the Federal Rail Safety Act. Under the FRSA, physical impact is not necessary for the recovery of emotional distress damages, and a worker can recover for any emotional distress resulting from a railroad's violation of his FRSA rights. And punitive damages up to $250,000 also are recoverable under the FRSA for outrageous conduct by the railroad.

So, even if a worker has no claim under the FELA for emotional distress, he still may be able to recover emotional distress damages under the FRSA.

FRSA Bars Discipline For "Late" Injury Reporting

 

It's one of the hoariest acts in the railroad repertoire of retaliation: first, invent rules setting an arbitrary deadline for the reporting of injuries, and then use the threat of discipline under those rules to discourage the reporting of injuries. Classic examples of absurd reporting rules are Metro North Railroad's "all injuries must be reported immediately" and CSX Transportation's "all injuries must be reported prior to the end of the shift." Such arbitrary rules outlaw entire categories of FRA reportable injuries.

No more. Under the Federal Rail Safety Act, the reporting of injuries cannot be used as the basis for discipline. And because any discipline for "late reporting" is necessarily based on the reporting of an injury, it is a prima facie violation of the FRSA. And railroads who continue to discipline for "late reporting" are getting slammed with record high punitive damages. See, for example, Harvey v. Union Pacific Railroad.

So, thanks to the FRSA, there is no longer any such thing as the "late reporting" of an injury. The railroad repertoire of retaliation just keeps getting smaller and smaller.

Flurry Of FRSA Awards A Glimpse Of The Future

 

There has been a flurry of Federal Rail Safety Act decisions in the past few weeks, all positive for workers, and all demonstrating a trend toward higher punitive damage awards.

Pfeifer v. Union Pacific Railroad concerns retaliation against a conductor who reported safety hazards. After he reported rough spots on the railroad track, he was subjected to increased field testing and ultimately suspended without pay. OSHA found that such conduct has a real chilling effect on the willingness of workers to report safety issues, and ordered Union Pacific to pay $100,000 in punitive damages for its "outrageous behavior and callous disregard for the rights of its employees."

Newman v. Union Pacific Railroad also concerns retaliation against a conductor who reported safety concerns. He was pulled out of service and permanently dismissed from service in retaliation for taking safety seriously enough to report safety hazards he noted in the right-of-way. OSHA ordered Union Pacific to pay over $250,000 in make whole damages, including $150,000 in punitive damages.

Wallis v. Burlington Northern Sante Fe Railway concerns a hostler who reported an injury and was subjected to the Railroad's infamous Personal Performance Index Point Distribution (PPI) policy, which assigns disciplinary points to injuries that are FRA reportable. The hostler was suspended without pay for 30 days, and OSHA found that Union Pacific's enforcement of its PPI policy for reporting a work-related injury violates the FRSA. OSHA ordered the Railroad to pay $150,000 in punitive damages, which reflects the FRSA's antipathy to system-wide policies of retaliation, and $125,000 for "mental pain and suffering," which reflects the solid medical evidence documenting the hostler's emotional distress.

Harvey v. Union Pacific Railroad concerns a locomotive engineer who reported an injury two months after it occurred. Despite the fact he was "a dedicated employee who had no history of prior poor performance or misconduct," Union Pacific terminated him for "failing to report an injury in a timely manner." However, OSHA found the engineer "was reasonable in delaying reporting his injury because he initially did not believe he had been so severely injured as to warrant putting himself at risk of retaliation for reporting the injury." The Railroad was ordered to pay $150,000 in punitive damages "for its egregious and willful behavior and for its disregard for the rights of its employees under FRSA." OSHA also ordered the Railroad to pay $75,000 for the "undue pain and suffering" it caused.

For OSHA's press release about the three Union Pacific cases, click here.  Over the past two years FRSA punitive damage awards have progressed from $75,000 to $100,000 to $125,000 and now to $150,000. But the railroads could care less. They have continued doing business as usual, or rather violations as usual, and their management culture of retaliation remains intact. If OSHA wants the railroads to take the FRSA seriously, it will have to increase punitive damage awards to the maximum allowed by law, and impose system-wide injunctions against every railroad's retaliatory policies and patterns of conduct.

But the message from these recent cases is clear: the path to six figure punitive and emotional distress damages is starting to get very well-trod, and promises to expand into a highway routinely traveled by thousands of workers if railroads continue to ignore the FRSA's mandate to treat the reporting of injuries and safety concerns as discipline-free events.

Norfolk Southern Railway's Gold Medal Turns to Tin

 

As Yogi Berra would say, "It's starting to get late early out there" for the Norfolk Southern Railway. OSHA has blown the whistle on NS's campaign of retaliation against injured workers, and the Federal Rail Safety Act awards and punitive damages just keep piling up.

In the latest, Nelson v. Norfolk Southern Railway, OSHA's investigation confirmed that employees "are reluctant to report an injury and/or illness, fearing that they will be targeted and eventually terminated from employment." Which explains how NS has kept its injury rates low enough to receive "the prestigious E.H. Harriman Rail Safety Gold Medal Award for 22 consecutive years." Only in the railroad industry could managers receive a safety medal for suppressing the reporting of injuries.

OSHA notes the "chilling effect" of NS's "reckless disregard for the law" and points to how NS "has been cited previously by the Federal Railroad Administration for harassing and intimidating employees from reporting injuries" in violation of FRA regulations. OSHA concludes that NS's "disregard for Complainant's rights under FRSA warrants punitive damages" in the amount of $75,000, plus another $20,000 for emotional distress and $26,000 in attorney fees.

When it comes to railroads like the NS, all that glitters is not gold.

FRSA Voids Vague Safety Rules

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

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

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

Another Judge Rules FRSA Not Derailed By CBA Appeals

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

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

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

How To Disqualify Unsafe Rail Managers

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

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

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

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

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

Supreme Court FELA Ruling Has An Immediate Impact

Talk about timing. I was on trial in federal court last week in a FELA injury case. The Railroad, no doubt hoping the U.S. Supreme Court would eliminate the FELA's long standing "even to the slightest degree" causation standard and replace it with the less favorable "proximate cause," had made a low ball offer and asked the Judge to charge the jury on the proximate cause standard. At 10:35 am on Thursday morning the Judge was ready to read his charge, but first turned to me and asked, "Mr. Goetsch, any word on the McBride Supreme Court decision?" I pulled out my IPhone and saw that only minutes before the Supreme Court had handed down the McBride decision upholding the FELA's "even to the slightest degree" standard. I replied, "Judge, the FELA remains intact. No reason to change the usual charge." The jury was charged accordingly, and later returned a verdict five times more than the Railroad's offer.

The purpose of the FELA is to promote safe railroad operations by allowing negligently injured workers to recover full jury damages. That's why Teddy Roosevelt pushed the FELA through Congress 103 years ago, to give the railroads an economic incentive to be safe. Last week the future of the FELA hung in the balance, but now we can thank the Supreme Court for upholding the FELA and refusing to cripple what is the original rail safety law. Somewhere, Teddy Roosevelt is smiling a big toothy grin. For the full decision in CSX Transportation Inc. v. McBride, click here.

RLA Arbitration Awards Do Not Bar FRSA Complaints

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

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

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

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

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

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

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

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

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

 

FRSA's Power of Preliminary Reinstatement

 

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

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

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

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

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

Norfolk Southern Hit With FRSA Damages

 

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

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

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

U.S. Supreme Court FELA Oral Argument

The Federal Employers Liability Act is the law that protects rail workers who are injured or killed on the job. The most important FELA case to reach the United States Supreme Court in the last 50 years was argued this morning. At stake is whether the FELA's long recognized standard of relaxed causation---namely, that a railroad is liable for an employee's injury or death if it "results in whole or part, even to the slightest degree," from the negligence of the railroad---was going to be overturned and replaced with a higher hurdle more difficult for employees to clear.

Arguing on behalf of all railroad employees was David C. Frederick, a veteran Supreme Court advocate who did an excellent job explaining why the relaxed standard must remain in place. If you have never been to a Supreme Court oral argument, the transcript of this morning's argument is well worth reading to get a flavor of how our nation's highest court deals with issues that affect the entire country. For the transcript of CSX Transp., Inc. v. McBride, click here. A decision will be handed down by June, so stay tuned.

Railroads Barred From Basing Discipline On FRSA Complaints

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

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

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

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

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

Blueprint For FRSA Punitive Damages

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

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

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

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

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

Warning: FRSA Confidentiality Clauses Unethical

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

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

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

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

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

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

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

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

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

The Scope of FRSA Medical Treatment Prohibitions

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

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

Federal Rail Safety Act Is Not Precluded By Railway Labor Act

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

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

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

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

Another Judge Rejects Rail Management's Bogus FRSA Defense

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.

$1.1 Million FELA Settlement Vindicates Burned Metro North Worker

Teddy Roosevelt would be proud. 102 years after he signed the original rail safety statute into law, the Federal Employers Liability Act is still doing its job: exposing the unsafe practices of railroads and holding railroads accountable for the employee injuries that result.

The sad truth is, rail managers habitually ignore their own responsibility for the unsafe conditions that injure workers and instead focus all blame on the victim. This has the noxious effect of leaving the root cause of injuries in place, thereby prolonging the risk and guaranteeing more employee injuries. But in the right hands, the FELA is a powerful weapon that can pierce the armor of rail management denial and expose the truth about unsafe work practices. The remarkable story of electrician Jim Deacon is a case in point (see below for news links)

One of the most horrifying dangers on any railroad is a high voltage electrical arc explosion. During an arc explosion metal melts into a superheated plasma that engulfs workers in a fireball hotter than surface of sun, and is usually caused by defective cable connections. To prevent arc explosions, railroads must routinely inspect electrical equipment to confirm all connections are secure.  And to completely eliminate the risk of arc explosions, railroads must deenergize the power before employees begin working on the equipment.

On October 30, 2006, electrical tester Jim Deacon was assigned to work inside a third rail sectionalizing switch box that was an arc explosion waiting to happen. Because Metro North had not inspected that box, Metro North did not know there was a positive 700 volt cable under a metal motor housing that was completely disconnected and touching the metal housing, thus electrifying it. When Jim took off his protective gloves in order to thread a narrow #6 negative wire (following the practice in the field), the negative wire happened to touch the improperly electrified metal motor housing, sparking an arc explosion fireball. Jim spent a week in the Burn Unit with second and third degree burns over 15% of his body. Over the next year he endured three surgeries with multiple skin grafts.

And what of Jim's Metro North managers? Instead of taking responsibility for causing the explosion by their unsafe practice of not inspecting and not deenergizing, Metro North blamed Jim for his injury and disciplined him for not wearing gloves at the moment of the explosion. And instead of preserving the crucial evidence, the managers destroyed the cable end and connector barrel involved in the explosion, and denied they had shot any videotape during their investigation. Fortunately an anonymous source mailed Jim a copy of the video shot by the top manager showing him personally ordering workers to reach inside the live box without protective gloves on, the very same act for which the manager disciplined Jim.

Jim returned to work in the Metro North Power Department for 17 months, but the ongoing unfair blame and unsafe working conditions took a severe toll on his psychological condition, to the point he was medically disqualified from working.

But the FELA finally forced the Railroad to admit the truth. After 3.5 years of blaming Jim, on the eve of trial Metro North admitted the explosion was caused by its negligence and that Jim did not contribute to his injuries in any way. This crucial vindication--plus the $1.1 million Metro North will pay Jim--would not have happened without the FELA.

So Teddy Roosevelt's rail safety law is indeed working as intended. For a two minute video regarding the arc explosion, go to the New Haven Register news site, where a copy of rail safety expert James Sottile's excellent Report detailing the failures of Metro North management is available as well.

NJ Transit Rail Worker Wins Historic $570,000 FRSA Award

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.

PATH Hit With FRSA Punitive Damages

 

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.

FRSA Overturns Retaliation for Reporting an Injury

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.

A Look Back and Forward

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!

How To Deal With Railroad Claim Agents

Joe Coleman from Seattle asks whether union reps can be present when a worker gives a statement to a railroad claims agent. The real question is, why would a railroad worker NOT have his union rep present?

No way can there be ever be a level playing field between a claim agent and an injured worker. Think about it. A claim agent is a manager whose only job is to save the railroad money. He is a professional trained to ask leading questions that steer the worker into incriminating answers that will insulate the railroad from liability. The injured worker, on the other hand, finds himself suddenly thrust into a bewildering process with no idea how to protect his legal interests.

Always remember, you don't have to give a statement to a claim agent. If a claim agent asks you to come in and give a statement, ask the claim agent if your union rep can be there with you. If the answer is no, that is all the proof of unfairness you need, and just walk away.

Before giving any statement, it is always best to at least consult with an experienced FELA attorney who can advise you how to protect your long term interests. But at the very least, talk to an experienced union rep who can be there to keep the claim agent honest.

So don't be fooled by the "friendly" claim agent who just "wants to help" and, by the way, just needs to take a "short statement on the record" before he will process your medical bills and so on. He will smile and joke and take your statement, and then months or years later when you go to settle your claim, he will pull out your statement and say, "Gee, what do you want from us? You yourself stated it was just an accident that could not have been avoided. You're lucky we even paid your medical bills."

Judge Rules ALL Railroads Subject to FRSA Punitive Damages!

 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.

Subcontracting Is No Escape From FELA and FRSA Liability

Rail union rep Joe Coleman from Seattle has a question about the FELA liability of railroads who contract out work. His General Foreman recently hired subcontractors to band freight car loads that had shifted due to broken banding, and when challenged tried to justify it by arguing that since the subcontractors are self-insured, the railroad will save on FELA liability.

It ain't necessarily so. Federal Employers Liability Act liability cannot be contractually waived, 45 U.S.C. 55, and the Supreme Court holds that "non-railroad" employees are nevertheless covered by the FELA if they are (1) a borrowed servant of the railroad, (2) a servant acting for two masters simultaneously, or (3) a subservant of a company that was in turn a servant of the railroad. Kelly v Southern Pacific Co 419 US 318, 324 (1974). When determining whether a person is a borrowed servant or dual servant under the FELA, courts look at several factors: (1) who exercised significant supervisory control over the worker at the time of the injury; (2) who selected the worker; and (3) who paid his or her wages. The overriding consideration is whether the railroad had control of (or the right to control) the worker in the performance of his duties, and where evidence of control of the employee's activities is in dispute, the case must go to a jury. Vanskike v ACF Indus. Inc., 665 F.2d 188, 198 (8th Cir, 1981).

So don't let managers bluff you with such lame justifications for violating your contracting out rules----railroad laws such as the FELA do not disappear merely because a railroad says so. Employees of railroad subcontractors can still sue the railroad under the FELA. And by the way, railroad contractors also are covered by the anti-retaliation provisions of the Federal Rail Safety Act. Under the FRSA, a railroad subcontractor cannot retaliate against its own employees who report safety violations or personal injuries.

OSHA HAMMERS METRO NORTH WITH $300,000 IN FRSA PUNITIVE DAMAGES!

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.

 

 

FRA Bars Supervisors From Medical Exam Rooms

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.

OSHA Orders $7.9 Million In Whistleblower Damages

 

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.

A Heart Breaking Railroad Accident

 

Our hearts go out to the family and friends of Metro-North Railroad worker Kevin McGrath, whose life came to an end on the tracks just west of Rye Station while he was on duty January 9th. Just as every human life is unique, each fatal railroad accident like this is uniquely tragic. 

As Kenny's family, friends, and co-workers celebrate his life and mourn his loss, they cannot help but ask themselves, "Why? What went wrong? How could this possibly happen to an experienced 25 year Railroad veteran?" It is only human to try to make sense out of such a tragedy by asking such questions. But if experience is any guide, the full truth as to what really happened will not emerge until long after the period of initial shock and grieving. 

From my point of view as a railroad accident FELA lawyer, at times like this I am always struck by the disconnect between the superficial news reports in the media and the complex depths of the true story. One article from the Connecticut Post is typical.  Click here for article. It gives the bare known facts, and then refers to two earlier Metro North railroad accident worker fatalities, both of which were FELA cases handled by my firm. The Robert Ard, Jr. case is instructive. After Bob was killed by a Metro North train in Stamford Yard, Metro North Railroad management issued a Report placing all the blame on him, a conclusion other law firms endorsed when declining to help his wife and two daughters. Of course Bob could not speak for himself, but by aggressively using the tools of federal court discovery we were able to uncover the truth: the underlying cause of Bob's death was in fact Metro North's failure to follow its own failsafe procedures for safe switching operations. After a two week federal court trial, the jury rejected Metro North's "blame the victim" defense and returned a gross verdict of $4.3 million for Bob's wife and daughters.  For information on the Ard verdict, click here and here.  

As the Ard case illustrates, the full truth will not emerge even when the Railroad conducts its own investigation and issues its Report. Indeed, it is likely Metro North's Report actually will avoid or obscure the truth as to what really happened and why. It takes time and hard work, but the truth as to what really happened can and must be discovered, if only to provide closure for Kevin McGrath's loved ones and to ensure that such a tragedy never happens again.

New FRSA Amendment Protecting Medical Treatment Alters the Balance of Power

 The FRSA (Federal Railroad Safety Act, 49 USC 20109) just keeps getting better and better. The FRSA is now amended to provide that:

A railroad may not deny, delay, or interfere with the medical treatment of an employee who is injured during the course of employment. In particular, a railroad may not discipline or threaten to discipline an employee for following the orders or treatment plan of a treating physician. (The full text of this amendment is available after the jump).

This is a fundamental shift in the balance of power between rail management and rail labor. Think about it. Up to now, whenever an employee reports a FELA on-the-job injury, railroads like Metro North, LIRR, New Jersey Transit, Massachusetts Bay Commuter Railroad, and Amtrak order the injured employee to travel long distances to the railroad's medical facility, even if such travel violates the treatment plan of the employee's treating doctors. Once there, the employee is given a perfunctory lookover by a non-physician and sent back home. This is a form of harassment designed to discourage employees from reporting injuries in the first place. And if the employee follows his doctor's orders and stays home, the railroad charges the employee with insubordination and disciplines him, up to and including firing.

Here's a recent example. True story, I'm not making this up. An injured employee in Connecticut was ordered to report immediately to the Metro North medical facility in Grand Central Terminal. His treating doctor faxed down a note confirming that his patient required three days of bed rest. Metro North refused to accept the note because, and I quote, "It doesn't say that you can't travel on a train" (apparently Metro North now allows beds in its commuter trains). Metro North told the employee he is not excused from the appointment and "You will be disciplined if up don't show up."

Well, railroads can no longer play that game. The FRSA now prohibits a railroad from disciplining an employee for following the orders or treatment plan of his treating doctor. So when an employee has a note from his doctor stating he can not travel, the railroad can not force him to travel to its medical facility. Or if the treating doctor says no light duty, the railroad can not force the employee to work light duty. Or if the treating doctor says his patient needs more treatment before returning to work, the railroad can not force him back to work. 

Another form of abuse is when railroads routinely "deny, delay, and interfere with an injured employee's medical treatment" by arbitrarily declaring his on-the-job injury "non-occupational." This means the railroad will not pay for the medical treatment prescribed by the employee's treating doctor. This forces the employee to try to have his regular medical insurance pay for his treatment, but such insurance is not supposed to cover on-the-job injury medical expenses. Many medical insurance plans limit the doctors you can see, and all require various out-of-pocket co-payments. As a result, this inevitably denies, delays, or interferes with the employee's medical treatment. And the railroad improperly evades payment of the medical expenses by placing it on the backs of the insurance company and the employee.

Metro North Railroad is notorious for this abuse, and in fact the Metro North Labor Council has been investigating this arguably fraudulent conduct by the Railroad for some time. Now, railroads like Metro North will be sued under the FRSA whenever they declare an on-the-job FELA injury to be "non-occupational," with the prospect of punitive damages up to $250,000 for each occurrence.

There is more to this powerful amendment to the FRSA (keep tuned, details to follow). But one thing is clear: in the eternal struggle between rail labor and management, the balance of power has now shifted over to labor's side when it comes to controlling the course of an employee's medical treatment. Start spreading the word so labor can enforce its new won rights to the fullest extent allowed by law. 

SEC. 419. PROMPT MEDICAL ATTENTION.

(a) IN GENERAL.—Section 20109 is amended—
(1) by redesignating subsections (c) through (i) as subsections
(d) through (j), respectively; and
(2) by inserting after subsection (b) the following:

"(c) PROMPT MEDICAL ATTENTION.—
"(1) PROHIBITION.—A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment. If transportation to a hospital is requested by an employee who is injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care.

"(2) DISCIPLINE.—A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that a railroad carrier’s refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to Federal Railroad Administration medical standards for fitness of duty or, if there are no pertinent Federal Railroad Administration standards, a carrier’s medical standards for fitness for duty. For purposes of this paragraph, the term ‘discipline’ means to bring charges against a person in a disciplinary proceeding, suspend, terminate, place on probation, or make note of reprimand on an employee’s record."

The Inside Story on the FRSA's First Punitive Damages Order

Last month, the first reported Order imposing punitive damages against a railroad for violating the FRSA anti-retaliation law came to light. It concerned retaliatory conduct by Amtrak in Seattle, but the OSHA Whistleblower Office Press Release announcing the Order provided few details about what actually happened.

Well, my curiosity was piqued. I managed to get my hands on OSHA's Findings and Final Investigation Report, and the details are very telling.

The employee was working in the King Street Station in Seattle. In the rail yard north of Holgate Street she stepped off a platform onto a parking area that was not properly maintained (potholes, uneven ground, rocks) and twisted her left ankle on a rock. She reported the injury to her supervisor, who saw her swollen ankle, and she booked off injured. Amtrak immediately charged her with violating the usual vague all-encompassing "safety" rules (including Amtrak's "Standards of Excellence," whatever that is), and held a disciplinary hearing. Initially she was fired, but that was reduced to a 30 day suspension without pay.

The employee filed a FRSA retaliation complaint, and OSHA Whistleblower's office investigated. OSHA found Amtrak's managers had "a mind-set that employees are always at fault when they are injured on the job" and "engaged in intimidation by assessing severe punishment against employees who report injuries, which sends a chilling effect to all employees not to report injuries for fear of losing their employment." OSHA ordered Amtrak: to pay the employee her back wages along with punitive damages; to expunge the discipline from her file; and to not retaliate or discriminate against her in any manner in the future.

To me, the most remarkable thing about this case is how typical the scenario is: an employee reports a FELA on-the-job injury, and the railroad reacts by filing bogus disciplinary charges against the employee. This happens every day on railroads all over the country. The fact punitive damages were ordered for such a common situation bodes ill for railroads like Metro North, the LIRR, NJ Transit, MBCR, Amtrak, and CSX where the management culture encourages such knee jerk disciplinary retaliation against employees who report injuries. The FRSA is designed to change that culture by enforcing the free and unfettered reporting of injuries. And punitive damages are the hammer that will force such a cultural change. So railroad managers beware: you now are on notice that trying to discipline an employee who reports a railroad injury will put you squarely in the crosshairs of a FRSA punitive damage action.

Railroad Workers Gain New Protection Against Retaliation For Injuries


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.