Train Law Blog

Train Law Blog

The Source for Railroad Injuries & Whistleblower Protection

More on FRSA “Good Faith” and “Intentional Retaliation”

Posted in Federal Rail Safety Act

What Is A “Good Faith” Refusal?

Under subsection (a)(2) of the Federal Rail Safety Act, it is protected activity for an employee “to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety.” Now comes a Circuit Court decision clarifying what qualifies as “a refusal” to violate a FRA safety regulation.

In Rookaird v. BNSF Railway Company, the 9th Circuit Court of Appeals explains how an employee’s refusal of a direct order or an implicit order is protected by the FRSA:

an employee’s refusal need not be precipitated by an explicit directive in order for the employee’s refusal to be FRSA protected activity. The word “refuse” in the FRSA is a clear reference to the employees conduct, not the employer’s. And while certainly an explicit order can be “refused,” statements or conduct of the employer can amount to an implicit order, and an employee can refuse to follow that implicit order just as much as an explicit one.

Moreover, the Circuit Court rejected BNSF’s argument that such refusals only apply to actual violations of FRA regulations:

BNSF effectively asks us to add the word “actually” before “violate” in paragraph (a)(2). We reject this narrow interpretation of (a)(2) as incorrectly narrowing its intended scope. To constructively add the word “actually” into paragraph (a)(2) would undercut the good faith requirement that applies throughout subsection (a). Congress’s use of the phrase “in good faith” in subsection (a) means that it intended for paragraph (a)(2) to extend to an employee’s good faith refusal to undertake conduct the employee believed to be violative of a law, rule, or regulation, even if the conduct at issue would not constitute an actual violation of a law, rule, or regulation if performed or continued.

And such an interpretation is consistent with the good faith standard applicable to reporting a work related injury. The Circuit Court noted that federal courts interpreting what injury reports are protected by the FRSA

have refused to construe paragraph (a)(4) to require that the reported injury actually be work-related. Rather, those courts require only that the employee have had, at the time of notification, a good faith belief that the injury was work-related: the employee must show that “he subjectively believed his reported injury was work-related,” and that “his belief was objectively reasonable.” If the employee turns out to have been mistaken (that is, the injury was not actually work-related), the railroad can still be liable under paragraph (a)(4), provided that the employee’s notification was done in good faith.

Further Weakening Kuduk’s Mischief

And the 9th Circuit’s decision in Rookaird further weakens the 8th Circuit’s notorious insertion of the mischievous phrase “intentional retaliation” in Kuduk v BNSF. The fact is, employees do not have to prove the railroad had an intentional motive to retaliate. Even the 8th Circuit in Kuduk recognizes that fact, as does the 5th Circuit, 7th Circuit, and 9th Circuit: all hold that an employee’s prima facie showing “does not require that the employee conclusively demonstrate the employer’s retaliatory motive.” All an employee must prove is that one or more of the managers involved in the chain of discipline or adverse action against him had some knowledge of his protected activity.

For more on the proper reading of Kuduk, go to When Context Is Everything and A Distinction Without A Difference. For more on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.

Recent Seaman Protection Act Whistleblower Developments

Posted in Seaman's Protection Act

A $1.15 Million SPA Whistleblower Settlement

It took four long years, but a full measure of justice has come to my client Captain John Loftus. John was the Captain of a 850 foot long container ship who took safety seriously. After his employer ignored his internal reports of unsafe conditions, John went outside to the American Bureau of Shipping and Coast Guard, who forced Horizon Lines to correct the conditions. Horizon then found a pretext to fire John from his Master position. Both the Administrative Law trial Judge and the Administrative Review Board appeals judges ruled in his favor, ordering over $1.15 million in back pay, emotional distress, punitive damages, attorney’s fees and costs. John refused to compromise, ultimately forcing the Company to pay the full $1.15 million, with no confidentiality. So hats off  to John for insisting on clearing his reputation while being made whole.

ARB Confirms SPA Covers Internal Safety Complaints

The Seaman’s Protection Act prohibits retaliation against any seaman who reports a work related injury or reports to the U.S. Coast Guard or American Bureau of Shipping “that a violation of a maritime safety law or regulation has occurred.”

It also protects merchant mariners who “testified in a proceeding brought to enforce a maritime safety law or regulation.” But how broad is the scope of such a “proceeding”? The Administrative Review Board confirms it is broad enough to include purely internal safety complaints:

The Board has interpreted “proceedings” under other whistleblower statutes we administer as covering safety complaints to the employer. . . .protected activity includes “bringing a proceeding” or having “testified in such a proceeding”, which the Board has interpreted to cover internal complaints to an employer.

Meeks v. Genesis Marine, LLC. Thus, to be protected from retaliation, seamen need not necessarily escalate their safety complaints to outside agencies. And OSHA’s Seaman Protection Act Fact Sheet  now confirms it is protected activity under the SPA to make “an internal complaint, such as to a master, captain, or other supervisor, relating to a violation of maritime safety law or regulation.”

For more on the standards applicable to whistleblower laws such as the Seaman Protection Act, go to the free Rail Whistleblower Library.

Some Recent FRSA Developments

Posted in Federal Rail Safety Act

What is Adverse Action?

The question arises, in order to qualify as an “adverse action” under the Federal Rail Safety Act, does a railroad’s investigation into an employee’s actions have to result in actual discipline? What if the charge is eventually dropped? No harm no foul? A recent district court decision clarifies the matter:

The Administrative Review Board has repeatedly held that charging an employee with a policy violation, instituting an investigation, or simply threatening adverse action against an employee can constitute adverse action, even when the employee is not ultimately discharged or suspended and suffers no economic harm.

Thus “adverse actions” under the FRSA include not just “discriminatory actions that affect the terms and conditions of employment,” but also any action that would dissuade an objectively reasonable employee from exercising her rights under the law. And the United States Supreme Court stresses that “context matters” when making that assessment. The same action might therefore constitute a minor annoyance in one context and an adverse action in another.

Though the materiality requirement may not be met “any time” an investigation is instituted, the requirement may be satisfied where an investigation–along with its implicit threat of discipline–would dissuade a reasonable employee from exercising her rights under the FRSA.

Renzi v. Union Pacific Railroad Company.

So, when it comes to adverse action, context matters, and the focus must be on whether a reasonable worker would be discouraged from reporting an injury or unsafe condition if he knew that doing so would subject him to an investigation that has the potential to end in discipline. Here is the district court’s full decision in Renzi v. Union Pacific Railroad Company.

Is Reporting an Injury Also Reporting a Hazardous Safety Condition?

The short answer is, yes it can be. In Wooten v. BNSF Railway Company, a conductor reported that his wrist was injured due to a door latch that was not working properly. He filed a FRSA Complaint citing the protected activity of reporting of a work injury but not specifically claiming he also reported a hazardous safety condition. When the employee filed a FRSA complaint in federal court citing both protected activities, the Railroad argued he was limited to the specific allegations in his OSHA complaint.

The district court disagreed, in a decision confirming that when a worker’s injury report states the injury resulted from some hazardous safety condition, then the employee’s “claim that he engaged in protected activity by reporting a hazardous safety condition is reasonably related to his OSHA complaint.” Here is the district court’s full decision in Wooten v. BNSF Railway Company.

So although it is better form to specifically include any applicable protected activities in the OSHA complaint, it is sufficient if the worker’s report of the injury also refers to a particular hazardous safety condition that caused the injury. For more on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.

ARB Affirms $1 Million Seaman’s Protection Case

Posted in Seaman's Protection Act

While railroaders and truckers generate the most cases, seamen and merchant mariners also are protected from retaliation when they blow the whistle on safety issues. The Seaman’s Protection Act prohibits retaliation against any seaman who reports a work related injury or who reports to the U.S. Coast Guard or American Bureau of Shipping “that a violation of a maritime safety law or regulation has occurred.” In 2013 Captain John Loftus brought a landmark SPA case against Horizon Lines and Matson Alaska when they fired him after he reported numerous safety violations to the USCG and ABS.

After a three day trial in 2015, Administrative Law Judge Jonathan A. Calianos awarded Loftus nearly one million dollars in damages ($655,000 in back pay, $225,000 in punitive damages, plus emotional distress, attorney fees, and compounding interest). Here is a full analysis of the ALJ’s Decision. Horizon and Matson appealed, and now the Administrative Review Board has soundly rejected all of their arguments.

The ARB’s Decision is notable because it affirms Horizon constructively discharged Loftus when it demoted him from Captain to Chief Mate, forcing him to resign rather than sail as Chief Mate under “intolerable working conditions.” The ARB also affirmed the $225,000 in punitive damages, since “a large punitive damage award was necessary to deter and punish Horizon given its longstanding inaction addressing Loftus’s safety concerns, the chilling effect Horizon’s retaliatory actions likely had on other marine employees, and the harm it visited upon Loftus personally.”

The take away? All seamen and merchant mariners should know there is a federal statute that encourages them to report safety violations to the USCG or ABS, and that protects them from retaliation when they do. For the sake of shipping safety, let us hope this landmark case liberates all seamen to freely exercise their SPA right to report safety hazards, and deters managers from retaliating when they do. Here is the ARB’s full decision in Loftus v. Horizon Lines, Inc. and Matson Alaska Inc. Here is the Connecticut Law Tribune’s article on the Decision. For more on the standards applicable to whistleblower laws such as the SPA, go to the free Rail Whistleblower Library.

Second Circuit Sidesteps Subsection (c)(1) Issues

Posted in Federal Rail Safety Act

Federal Rail Safety Act subsection (c)(1) prohibits railroads from denying, delaying, or interfering with the medical treatment of employees “injured during the course of employment.” In a fact driven decision, the Second Circuit Court of Appeals sidesteps deciding the temporal scope of that protection (just first aid or entire course of treatment?) and its interpretative standard (can a railroad’s denial of a medical claim payment constitute interference?). Instead, the Court merely commented: “We suggest that the Administrative Review Board might reexamine and further explicate its reasoning regarding Section 20109(c)’s interpretation in the future.” Metro North Commuter Railroad Company v. United States Department of Labor (previously captioned as Anthony Santiago v. Metro North Railroad).

In the Metro North case, the Railroad’s Medical Department contractor refused to approve payment for a treatment procedure based on its view that Santiago’s occupational injury had resolved. Given a lack of evidence showing the Railroad’s direct involvement in that determination, the Circuit Court found there was not enough proof the Railroad improperly influenced the contractor’s action. So the Circuit’s decision is limited to that narrow set of facts, and obviously does not apply to actions taken directly by a railroad’s own supervisors or by its own medical department.

The take away? The resolution of subsection (c)(1)’s scope and standard must wait another day. For more on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.

Can OSHA Order the Training of Managers?

Posted in Federal Rail Safety Act

The FRSA is a “make whole remedy” statute, so the question arises: can OSHA force a recalcitrant railroad to train its managers so they comply with the statute going forward? The short answer is: yes, when the facts call for it. The long answer is found in Administrative Law Judge Timothy J. McGrath’s decision in Giuliano v. CSX Transportation, Inc.

OSHA found CSX violated JJ Giuliano’s FRSA right to report safety hazards, and in addition to awarding punitive damages ordered that “all managers at CSX’s Selkirk Locomotive Diesel Shop shall receive training provided by OSHA relative to the FRSA rights afforded employees.” CSX paid the punitive damages, but objected to the training of its managers (go figure).

Judge McGrath first noted OSHA’s FRSA regulations confirm that the posting of a Notice regarding the whistleblower complaint “can be important to remedying the reputational harm an employee has suffered as a result of retaliation.” And as for training managers:

an order to provide training to managers regarding the rights protected by the FRSA can assist in making the employee whole by ensuring that the circumstances that led to retaliation do not persist, thus remedying the employee’s fear of future retaliation for having engaged in the protected activity.

See OSHA’s Final Rule Summary at page 69126. Noting that the FRSA statutory language broadly mandates all remedies to make an employee whole, Judge McGrath concluded:

I find an order of affirmative action to abate a violation (such as ordering the training of managers) may be appropriate under the FRSA when it functions to make the employee whole.

The key factor is whether the employee remains under the supervision of the managers who retaliated against him. If so, posting a Notice restoring his reputation in the workplace is appropriate, as is an order forcing the training of those managers to ensure the retaliation will not continue in the future.

Here is the full text of Giuliano v. CSX Transportation, Inc. For more information on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.

FRSA Subsection (c)(2)’s Safe Harbor Exception

Posted in Federal Rail Safety Act

In a case of first impression, a federal judge has applied FRSA subsection (c)(2)’s exception to the prohibition against railroads disciplining employees for following the orders of a treating physician. Stapleton v. Union Pac. R.R. Co.

The exception to (c)(2) is:

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 for duty or, if there are no pertinent FRA standards, a carrier’s medical standards for fitness for duty.

Kelly Stapleton was a locomotive engineer who reported an injury for which he received medical treatment. When his treating doctor OK’d him to return to work, the Railroad’s Medical Department refused to allow him to do so.

Turns out that four years before, the Railroad had added “treatment with anti-seizure medication to prevent seizures” to its list of medically disqualifying conditions. Separate from his work injury, Stapleton had been diagnosed with epilepsy and was being treated with anti-seizure medication. So when his return to work exam revealed that, the Railroad refused to allow him to continue operating locomotives.

Stapleton sued under the FRSA claiming the refusal was in retaliation for his reporting of an injury. But the federal judge found (c)(2)’s Safe Harbor “exempts railroads from retaliation claims” for refusing to allow an employee to return to work pursuant to the railroad’s “medical standards for fitness for duty.”

Here is the full text of Stapleton v. Union Pac. R.R. Co. For more information on the rights of railroad whistleblowers, go to the free Rail Whistleblower Library.

How the FRSA Can Protect Safety Absences From Discipline

Posted in Federal Rail Safety Act

It is especially important for rail workers in safety sensitive positions to know how to book off when their medical condition renders them unsafe. To quote the Chairman of the NTSB: “The public deserves alert operators. That’s not too much to ask.” Yes, but how can a rail worker protect a safety absence from discipline? Well, in Winch v. Dir, OWPC, 2018 U.S. App. LEXIS 3584 (11th Cir. 2018), the 11th Circuit Court of Appeals spells out how railroad employees can have safety absences protected by FRSA subsection (b)(1):

After careful review, we find that the ARB’s fact-specific decision was supported by substantial evidence. Like the ARB, we do not opine on whether calling in to report one’s own illness can qualify as “reporting . . . a hazardous . . . condition” under § 20109(b). Assuming for purposes of this opinion that it can, the ARB relied on substantial evidence in concluding that Winch did not actually “report[] . . . hazardous . . . condition” under § 20109(b)(1)(A). As the ARB noted, when Winch called in sick, he told the crew operator only his name, his identification number, and his desire to be marked off sick; he failed to list or describe any of his symptoms and how they would impact the performance of his duties. Nor did Winch otherwise put CSX on notice that he was “reporting . . . a hazardous . . . condition.” Indeed, nothing in his call indicated that he was attempting to trigger this hazardous-condition provision as opposed to simply requesting a sick day.

The take away? A railroad worker who wants a safety absence to be protected from discipline under FRSA subsection (b)(1) must:

  1. inform the Railroad orally and in writing that he is in an unsafe condition to perform his duties, by
  2. listing his symptoms and describing how they would impact the safe performance of his railroad duties, and
  3. if possible, backing it up with a doctor’s note confirming the symptoms and the doctor’s order not to work.

Safety absences must be protected. Here is the full text of Winch v. Dir, OWPC, 2018 U.S. App. LEXIS 3584 (11th Cir. 2018). For more on the whistleblower rights of railroad employees, go to the free Rail Whistleblower Library.

What Is a Work-Related Illness?

Posted in Federal Rail Safety Act

Federal Rail Safety Act Section 20109(a)(4) protects rail workers who notify their railroad of “a work-related personal injury or work-related illness.” Injuries usually are pretty obvious. But what qualifies as “a work related illness”? The federal court in Williams v. Ill. Cent. R.R. holds that any illness arising during the course of employment is included, not just illnesses caused by the conditions of an employee’s railroad work.

Marcus Williams was a locomotive engineer who experienced what he believed were heart attack symptoms while at work and asked to be taken to the hospital. He was given a note to take off the next work day, and did so. The Railroad used that absence to fire him for violating its attendance policy. When Williams filed a FRSA complaint, the Railroad raised several arguments, all rejected by the federal judge.

First, the Railroad sought ” a bright-line rule that persons who experience a heart attack at work do not qualify for protections of the FRSA until an expert testifies that the heart attack was caused by work conditions.” But the judge rejected that narrow interpretation of subsection (a)(4).

Second, the Railroad argued Williams was not protected because he did not fill out the Railroad’s  injury report form. The judge rejected that as well: “The FRSA does not require employees to follow any particular reporting regime.” This is undoubtedly correct, as the statutory language of (a)(4) reads: “to notify, or attempt to notify, the railroad” of a work-related injury or illness. Mere notification is sufficient, not the filling of any railroad injury report form. And indeed, subsection (h) confirms the FRSA rights of employees “may not be waived by any form or condition of employment.”

Third, the judge rejected the Railroad’s reading of the Third Circuit’s PATH decision that, to be protected, an injury or illness must be “caused by work conditions.” The judge noted

The PATH Court concluded that “Congress intended the entirety of subsection 20109(c) to apply only when an employee sustains an injury during the course of employment.” . . . The Third Circuit nowhere indicated that an “on duty injury” or “work-related injury” meant anything more than that the injury must have occurred while the plaintiff was working.

Finally, regarding Illinois Central’s “clear and convincing evidence” defense that it fired Williams for violating the attendance policy “without regard to the reason for the absence, “the judge responded: “But that is exactly the problem. . . . If an employee is following doctor’s orders to stay at home, as in this case, his railroad should not classify the absence as a violation of attendance guidelines.”

Here is the complete text of Williams v. Ill. Cent. R.R. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

A Tale of “Malicious Compliance”

Posted in Federal Rail Safety Act

How bad is it on New Jersey Transit Rail?

So bad, the NJT Chief Compliance Officer (my client Todd Barretta) had to file a Federal Rail Safety Act whistleblower retaliation complaint after he was terminated for insisting the Railroad comply with FRA safety regulations. Here is the Bloomberg article.

So bad, NJT Rail employees who refuse to violate safety rules are charged with “malicious compliance.”

So bad, droves of the most skilled and experienced workers have fled to Metro North Railroad (of all places) for relief from the dysfunction.

The use of the term “malicious compliance” says all you need to know about NJT’s profoundly unsafe culture. But change is on the way. Declaring NJT “a national disgrace,” the new Governor is replacing the top managers and ordering a top to bottom audit of the entire Railroad. But the transformation of an entrenched workplace culture is never easy. It will be fascinating to watch this drama unfold. Stay tuned.

For more on the whistleblower rights of rail workers, see the free Rail Whistleblower Library.