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

Railroads are losing their campaign to gut the Federal Rail Safety Act by claiming that the Railway Labor Act precludes rail workers from invoking FRSA protection. In a resounding well-reasoned decision, Administrative Law Judge Richard A. Morgan explains that Congress enacted the FRSA "to allow employees to attempt to vindicate their rights using multiple means" and that the FRSA "clearly dictates that an employee is not precluded from pursuing both his RLA appeal to arbitration and his FRSA whistleblower protection complaint." For the full text of Newman v. Union Railroad, click here (PDF).

So the RLA does not preempt the FRSA. Ever. The two statutes simply run on separate tracks. In the words of Judge Morgan, employees are "not precluded from appealing their RLA discipline pursuant to the collective bargaining agreement while simultaneously litigating against the railroad through the FRSA." Kudos to Attorney Daniel J. Cohen and his client Charles Newman for adding another nail to the coffin of rail managment's bogus "election of remedies" defense.  For more background on this issue, click here.

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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.

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The largest award under the  Federal Rail Safety Act  has just been handed down against New Jersey Transit Rail. OSHA's Whistleblower Office found NJ Transit violated the FRSA by disciplining a worker in retaliation for his reporting an injury, and has ordered the payment of $570,000 in damages to make him whole. This Award is historic not only because of its size, but because of the broad spectrum of its "make whole" damages, including punitive damages and damages for ruining his credit.

The worker--my client conductor Anthony Araujo--witnessed a fatal 13,000 volt electric arc explosion involving a contractor crew. In such a situation, if NJ Transit had any grounds for believing Tony had contributed to the incident, federal regulations required the Railroad to drug and alcohol test him. However, after extensive interrogation, NJ Transit told Tony he had done nothing wrong, and confirmed that by not testing him for drugs and alcohol.

Tony then was sent to the Railroad's EAP for counseling, and the EAP Senior Counselor informed him he was not able to work and referred him for immediate treatment. This resulted in a lost time reportable injury. The next day the NJ Transit General Superintendent called the EAP to complain, and soon after filed disciplinary charges claiming Tony contributed to the fatal incident after all. Over the next year, the Railroad denied Tony his EAP benefits and then suspended him without pay. As a result of his lost income, Tony's credit rating plummeted, his car was repossessed, and the bank foreclosed on his home, generating significant mental distress.

The FRSA is notable because it creates a statutory right for rail workers to win punitive damages against their employer railroads.  OSHA's investigation here found that because NJ Transit's "conduct in retaliation against an employee for reporting an FRA reportable lost time injury exhibited reckless disregard for the law and complete indifference to complainant's rights," punitive damages are warranted.  Unless and until rail managers respect the FRSA rights of their workers, punitive damage awards will be routine.

In the past, railroads were free to discipline employees without having to worry about paying economic damages beyond limited back pay.  Those days are now over.  This Award makes clear railroads will pay full damages for all of the economic losses their retaliatory discipline inflicts on workers, including the value of homes and cars lost as a result of employees being forced out of work. For the full text of the Araujo Award, click here. For OSHA's Press Release, click here.

This case strips bare the retaliatory mentality of rail managers. With my help, Anthony Araujo was able to stand up for his FRSA rights and do his part in labor's crusade to transform the retaliatory culture of rail management. This Award confirms that the FRSA hands to every rail worker the sword and shield necessary to wage that crusade. And the message of this Award to railroads is loud and clear: your world has changed, and managers ignore the FRSA at their peril. So here's to Tony, and to the thousands of long suffering railroad workers who will be following the trail he blazed.

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The first Federal Rail Safety Act complaint against the Port Authority Trans-Hudson railroad has resulted in an award of punitive damages. The fact pattern is familiar to any railroad worker.

Laura, a Signal Tester, was injured on duty due to defective equipment, and duly reported her injury. But instead of using the incident as an opportunity to identify and correct the root cause of the safety hazard (namely, why the railroad allowed the defective equipment to remain in use), PATH's Superintendent sent her a disciplinary charge letter alleging the injury was solely her fault. A typical "blame the victim and ignore the systemic cause" reaction by rail management that happens every day on railroads across the nation, and is a major reason why safety hazards persist.

But things have changed. The FRSA is in effect now, and with my help Laura stood up for her FRSA right to be protected from such retaliatory action. OSHA conducted a thorough investigation, and found that no one else was charged with any safety violations for allowing the defective equipment to remain in use, and that the Railroad could have investigated the circumstances of the incident without ordering the injured employee to face a disciplinary hearing. OSHA concluded that if Laura had not reported an injury, no charge letter would have been sent.

What is interesting here is that Laura did not actually attend any disciplinary hearing or suffer any discipline. She just received an initial charge letter. And OSHA ruled such conduct is a violation of the FRSA that must be remedied. To make Laura whole, OSHA ordered PATH to expunge her disciplinary records and pay punitive damages and attorney fees. Of particular interest is the empowering NOTICE TO EMPLOYEES the Railroad must post on all of its bulletin boards.

So here's to Laura! By standing up for her FRSA rights she is at the forefront of a grass roots movement of workers acting to correct the imbalance of power between rail labor and management.

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Here's another example of what happens when a railroad tries to blame an injured worker instead of taking responsibility for the workplace culture that caused the injury in the first place. Declaring "An employer does not have the right to retaliate against its employees who report work-related injuries," OSHA's Whistleblower Office ordered two Illinois railroads to pay over $80,000 in back wages, compensatory damages, and attorney's fees to a former worker who reported an injury and then was subjected to a railroad "investigation" that resulted in his termination. Click here for OSHA's press release, and click here for the full text of the Federal Rail Safety Act that shields employees from such retaliation.

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Here's a quick look back at some of this year's notable developments in the rail safety world:

March: FRA bans railroad supervisors from medical examining rooms: click here

June: OSHA's Whistleblower Office issues $300,000 in punitive damages against Metro North Railroad for violations of the Federal Rail Safety Act FRSA, setting important precedent: click here

October: Judge confirms FRSA punitive damages apply to publicly owned commuter railroads:click here

November: Judge confirms FRSA prohibits railroads from interfering with the medical treatment plan of employees' treating doctors: click here

November: the first trial in the nation of a FRSA complaint is held in New Haven, Connecticut, against Metro North Railroad (stay tuned for the Judge's decision in early 2010)

And looking forward to 2010, here's hoping:

---for more rulings rejecting rail management's bogus argument that the participation of employees in Railway Labor Act disciplinary proceedings somehow constitutes an "election of remedies" that bars them from the whistleblower protections of the FRSA;

---for judicial rulings establishing that under the FRSA, an employee's treating doctor "trumps" over whatever a railroad manager or medical department may think or want to do;

---to increase the beneficial effect of the FRSA's sister law, the NTSSA (which protects subway system employees who raise safety concerns) by encouraging its application on major subway systems such as New York City Transit and the Washington DC Metro.

Meanwhile, here's wishing everyone a safe and productive new year!

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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."

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 Metro North Railroad's attempt to exempt itself from punitive damages under the Federal Rail Safety Act has failed. In a case of first impression, an ALJ has just ruled that ALL railroads--including publicly owned commuter railroads--are subject to the FRSA's punitive damage remedy. Plus, the ALJ is requiring Metro North Railroad to go through the past 196 injuries it reported to the FRA and produce documents confirming any discipline initated against the employees who reported those injuries. Why? Because when "determining whether punitive damages are warranted . . . prior similar acts may be important in determining whether a wrongdoer's conduct was reprehensible and thus subject to punitive damages." This is a major step forward in ensuring the protection of railroad workers who report injuries or safety concerns. To read the ALJ's detailed and well-reasoned decision, click here, and to see OSHA's earlier ruling regarding my four clients,click here.

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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.

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Talk about sending a message! OSHA has blown the whistle on Metro North Railroad's culture of retaliation. Big time. No longer do railroad workers have to fear reporting an injury or a safety violation. The days when railroad managers could retaliate with impunity are officially over. Every railroad in the country is now on notice that retaliation by managers will lead to punitive damages.

Under the new Federal Rail Safety Act (FRSA), railroad workers are protected from retaliation when they report any injuries or safety violations. These four workers turned to my railroad law firm for help when Metro North retaliated against them for reporting their railyard injuries: Ralph Tagliatela of West Haven, CT (station custodian), Larry Ellis of the Bronx, NY (car cleaner in GCT) Andy Barati of Waterbury, CT (trackman), and Anthony Santiago of Hopewell Junction, NY (shop electrician). We filed FRSA complaints that have resulted in the following remedies: $75,000 in punitive damages to each employee (total of $300,000); up to $10,000 in compensatory damages (total of $40,000); all lost wages with 6% interest; expungement of discipline records; barring Metro North from using injury sick days or injury reports to bar transfers or promotions; forcing Metro North to give each of its employees a copy of the OSHA Whistleblower Fact Sheet explaining their rights under the FRSA; and attorney's fees. In order to counter the chilling effect of Metro North's past conduct on all employees and to ensure protection from future retaliation, these complainants are posting OSHA's official Merit Findings here in order to show how OSHA enforces the FRSA rights of rail employees: Tagliatela Ellis Barati and Santiago. For the FRSA Fact Sheet click here.

In the first wave of FRSA whistleblower complaints, this group stands out both for the variety of the management retaliation and the strength of OSHA's response. As the railroad lawyer for all four employees, I can attest to the savvy of the OSHA investigator, who promptly launched her investigations and didn't let up until she had a thorough grasp of Metro North's culture of retaliation against employees who report injuries and safety concerns.

OSHA issued a press release that included this statement: "Railroad employees have the right to report occupational injuries and illnesses without fear that doing so will negatively affect their jobs, their health or their income," said Jordan Barab, acting U.S. assistant secretary of labor for safety and health. "Retaliating against employees for exercising this basic, legally protected workplace right is unacceptable."

On Metro North, OSHA's whistleblower investigators quickly ran into the stonewall of an entrenched management culture in which retaliation against employees is expected and rewarded. And Metro North's own conduct in response to the FRSA complaints was the ultimate proof of that problem: Metro North flatly refused to cooperate with OSHA's reasonable demands for documents while asserting ridiculous interpretations of the FRSA's broad remedial language. See this earlier blog entry where I predicted that such stonewalling will result in punitive damages.  These cases prove my point: the shortest distance between a FRSA complaint and a punitive damages award is for railroads to tell OSHA to go pound sand. The only thing that will get pounded is the railroad.

So for railroads across the country, the days of care-free retaliation are over. Refusing to change your ways is not an option. This action by OSHA proves the FRSA has sharp teeth that will shred recalcitrant railroads to pieces, while costing them real money. The message is clear: stop retaliating against employees, or get out your check book.

For more information on how the FRSA protects railroad workers, check out trainlawblog.com and trainlaw.com.

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The opportunities for railroad supervisors to harass injured workers just keeps getting smaller and smaller. The Federal Railroad Administration has now put a stop to the practice of railroad supervisors accompanying injured employees into medical exam rooms. The FRA issued a Notice of Interpretation declaring it to be a violation of federal regulations for a supervisor to be in a medical exam room with an injured employee (the only exception being if the worker is unconscious or has freely invited the supervisor in). FRA Notice

The FRA requires every railroad to adopt an Internal Control Plan confirming that any harassment or intimidation which discourages employees from reporting injuries will not be tolerated. 49 CFR 225.33(a).  Despite that requirement, the FRA Guide for Preparing Accident Reports acknowledges that many railroad supervisors engage in practices that circumvent the reporting of injuries, including harassing and disciplining employees who report injuries. Go to FRA Guide p.8

One of the ways supervisors try to make an injury non-reportable is to go into the medical exam room where they can pressure the employee or influence the extent of medical treatment. Those days are over. Now, it is a patent violation of FRA anti-harassment regulations "when a railroad supervisor accompanies an injured employee into an examination room." And that is on top of the protection given by the Federal Railroad Safety Act, which prohibits supervisors from interfering with the medical treatment of injured employees. 49 USC 20109

So employees and union reps, now hear this: when supervisors want to go into the examining room, bar the door! And if a supervisor barges in anyway, file a complaint with the FRA for a violation of 49 CFR 225.33(a) and then file a complaint with OSHA's Whistleblower Office for violation of the FRSA, 49 UCS 20109(a)(4) and (c). Under these new railroad laws, the fines, penalties, attorney's fees, and even punitive damages that result will put a stop to that particular form of railroad intimidation.

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Need more proof that retaliation doesn't pay? Check out this scenario. Workers raise safety concerns with their carrier and OSHA. Carrier files a defamation lawsuit against the workers. Workers file Whistleblower complaint with OSHA. OSHA investigation finds lawsuit was in retaliation for the workers' protected activity, and PRESTO! the carrier has to pay $7.8 million in compensation and attorneys fees.

And to top it off, OSHA orders the carrier to withdraw the lawsuit and give all its employees notice of their Whistleblower rights. Read about it here. The carrier this time happened to be an airline, but the same scenario would apply to a railroad carrier arrogant enough to do the same to its workers. And we all know there is no dearth of arrogant railroad managers out there who think they have a license to retaliate against employees who dare to raise safety and injury concerns. So get ready for a flurry of tough orders against rail carriers, now that the first wave of OSHA investigations under the relatively new Federal Railroad Safety Act are coming to a head.

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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.

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 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. 

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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.

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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.

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