Answer: Yes, it can be, according to the United States Department of Labor. Joshua Cleveland v. Long Island Rail Road (SDNY) is a Federal Rail Safety Act case claiming the Railroad retaliated against an employee after he filed a FELA lawsuit. It is still to be decided by the district court judge, but the United States Attorney filed a Statement of Interest on behalf of the DOL confirming three scenarios when a FELA lawsuit can be FRSA protected activity:
First, an employee’s FELA lawsuit can notify the railroad of the work-related personal injury under FRSA subsection (a)(4) if the employee has not already reported the injury to the railroad. . . .
Second, if an employee has already reported the injury to the railroad prior to filing a FELA lawsuit, the employee’s FELA lawsuit can be protected activity if it provides the railroad with more specific notification of the injury. . . if the FELA lawsuit provides more specific information about the injury (such as that the effects of the injury are much more serious than initially reported) or informs a previously unaware railroad decision maker of the injury, then the FELA lawsuit can “notify or attempt to notify” the railroad of the injury under FRSA subsection (a)(4).
Finally, an employee’s testimony during a FELA lawsuit of allegedly unknown and undisclosed details of an injury can constitute more specific notification of the nature and extent of the injury.
Of course, the contributing factor element and the clear and convincing defense still apply. But all attorneys should be aware of when a client’s FELA lawsuit or testimony qualifies as FRSA protected activity. Stay tuned for the district judge’s decision. Here is the U.S. DOL’s Statement of Interest.
For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.