After today’s oral argument at the U. S. Supreme Court, the concept of “intentional retaliation” in whistleblower cases is on life support, and I predict that in a few short months the Supreme Court will pull the plug on it for good.

The Federal Rail Safety Act and statutes like it specify a two-step burden of proof: first, the employee has the burden of proving the protected activity was a contributory factor in the adverse action, and then the employer has the burden to prove by clear and convincing evidence it would have taken the exact same action in the absence of the protected activity.

The question in Murray v. UBS Securities LLC is whether whistleblower protection statutes such as the FRSA require employees to prove “intentional retaliation” in addition to the usual contributory factor element. In its Murray decision, the 2nd Circuit said yes, relying on the line of FRSA cases beginning with Kuduk v. BNSF Railway Company that requires employees to prove “intentional retaliation” as part of their prima facie case. In effect, those FRSA cases eliminated the two-step burden of proof by placing both burdens of proof on the employee.

The oral argument today focused on whether there is a separate additional “intentional retaliation” element employees must prove, or whether the usual two-step burden shifting remains in place. The comments of the Justices confirmed that “intentional retaliation” is a bogus concept pulled out of thin air by the 8th Circuit in Kuduk and does not change the usual two-step burden scheme. Justice Gorsuch’s comment is typical: “I just don’t see ‘retaliation’ in the stature. You are asking us to read into the statute words not there.”

All the Justices seemed to acknowledge an employer’s intent to discriminate is sufficiently established by the employee’s proof of the first step, and there is no additional “intentional retaliation” element for the employee to prove. And this makes sense, as the first step includes proof the employer had knowledge of the protected activity, and that knowledge, combined with the contributory factor proof, is sufficient to show an employer’s intent to discriminate.

Stay tuned for the upshot of this case, but the days of “intentional retaliation” are definitely numbered. For more on the rights of railroad workers under the FRSA, see the free Rail Whistleblower Library

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Just as the FRSA does on the railroad, the Seaman’s Protection Act (SPA) protects workers in the maritime shipping industry who report safety hazards. But there are only a handful of SPA whistleblower cases. Why the dearth of such cases?

The answer lies in the culture of the maritime industry, and in particular carrier policies prohibiting seamen from reporting safety concerns directly to the U.S. Coast Guard. This was the policy present in the leading SPA case, Loftus v. Horizon Lines (here is the Loftus ALJ Decision, and here is the ARB Decision). The expert trial testimony in Loftus confirmed it is “standard business practice” in the maritime industry for carriers to have in place corporate policies prohibiting seamen from reporting safety concerns directly to the USCG. And when employees such as Captain Loftus violate such policies by contacting the Coast Guard anyway, they are fired, sending a profoundly chilling effect throughout the ranks. So no wonder there are so few SPA whistleblower cases.

But now, in a landmark development, the Department of Labor’s OSHA Whistleblower Directorate has put the merchant marine industry on notice that such policies must be scrapped. And OSHA is doing so with the full support of the United States Coast Guard.

OSHA found that Maersk Line Limited–one of the world’s largest providers of marine cargo services–illegally suspended and terminated a seaman who reported safety concerns directly to the U.S. Coast Guard. OSHA ordered Maersk to pay the seaman over $700,000 in make whole damages, and to reinstate and promote him. And more importantly, OSHA ordered Maersk to drop its policy prohibiting seamen from directly contacting the U.S. Coast Guard. OSHA found such a policy is an egregious violation of the SPA whose chilling effect calls for $250,000 in punitive damages, the maximum amount. OSHA ordered Maersk to notify all its seamen of the revised policy and to post the following Notice in a conspicuous place in all its facilities:

OSHA has ordered your employer to change its policy that previously required you to report regulatory issues to your employer prior to reporting to outside agencies, such as the U.S. Coast Guard. The new policy removes any requirement that you report regulatory issues internally before you contact outside agencies.

This is a sea change in the maritime industry. Seamen no longer need to be afraid of going directly to the U.S. Coast Guard or ABS with safety concerns. Here is the full Merit Finding against Maersk. For more on the Seaman’s Protection Act and similar statutes, go to the free Rail Whistleblower Library.

The FRSA protects employees from retaliation for “reporting, in good faith, a hazardous safety condition.” In a recent landmark decision, the 2nd Circuit Court of Appeals held that such good faith only requires proof of a subjective belief, and rail workers do not have to prove both a subjective and objective basis for believing a condition is hazardous. Ziparo v. CSX Transp. Inc.

The 8th Circuit now endorses and follows that standard. In Monohon v. BNSF Ry. Co., the 8th Circuit holds “good faith as used in the FRSA requires only that the reporting employee honestly believes that what she reports constitutes a hazardous safety condition.”

The 8th Circuit goes on to note that the refusal-to-work provision of the FRSA has a higher standard and does require proof of objective reasonableness. However, the FRSA’s refusal-to-work provision is rarely invoked, while there is a multitude of hazardous condition reporting cases.

Regarding damages, the 8th Circuit Monohon decision also addresses reinstatement versus front pay. The FRSA states that an employee who prevails in a FRSA action “shall be entitled to all relief necessary to make the employee whole.” The 8th Circuit notes the FRSA goes on to state such relief “shall include” reinstatement, and so “unambiguously requires reinstatement.” However, the Circuit Court also recognizes “this requirement is not absolute” and that courts have the discretion to award front pay when reinstatement is not possible. But there is no question reinstatement is the default FRSA remedy, and can be replaced by front pay only under limited circumstances, or by agreement of the parties.

Of note, both Ziparo and Mohohon analyze and apply the plain meaning of Section 20109’s unique statutory language. This is consistent with the Supreme Court’s approach to statutory interpretation, and highlights the plain error of courts that fail to apply Section 20109’s plain statutory language, as for example by ignoring the FRSA’s statutory “due in whole or in part” contributing factor standard causation standard and applying a “proximate cause” standard instead.

Here are links to the complete text of Ziparo and the complete text of Monohon. For more on the whistleblower rights of railroad employees, go to the free Rail Whistleblower Library.

By now most rail industry union reps and attorneys know there are federal statutes protecting railroad and mass transit employees from whistleblower retaliation. But there is another special federal law that allows such workers to reap multimillion dollar bounties.

The name of that statute is the False Claims Act (FCA). The purpose of the False Claims Act is to punish the dishonest receipt of government monies and thus deter others from defrauding taxpayers. The FCA imposes triple damages and fines against the defrauding party and entitles the whistleblower relator to a share of the government’s recovery, usually around 20% (e.g., the whistleblower’s share on a $100 million governmental recovery is $20 million).

The False Claims Act applies to all federal (and most State) funded contracts, grants, or programs. It imposes liability on any person, business, contractor, or entity that submits a false claim in order to receive governmental funds. Examples of false claims include:

  • Falsely certifying a condition of payment
  • Billing for services not done or that are unnecessary
  • Over billing or double billing
  • Billing for substandard goods or services
  • Failing to pay or refund monies owed to the government

All false claims going back 6-10 years are fair game. However, FCA cases are fraught with hurdles and pitfalls. They can only be brought by an attorney on behalf of the whistleblower relator. Only the first relator to file can recover a bounty. The complaint must be filed under a strict seal. And any public disclosure or breach of the seal can be fatal to a relator’s claim.

One area that has not received the false claims attention it deserves is transportation infrastructure construction projects. Such projects include the construction or renovation of rail, tunnels, bridges, highways, and port infrastructure, and are subject to the FCA because they involve substantial federal and state funding. Two examples are the MTA’s East Side Access to Grand Central Terminal and the Moynihan Station renovation at the Penn Station Post Office.

A recent example of a transportation related FCA case is the $1.3 million dollar settlement in my client Bill Marshfield’s FCA suit against a contractor who installed speed cameras for the New York City Department of Transportation. Marshfield is a master electrician who blew the whistle on the contractor’s installations that did not comply with DOT specifications and electrical codes. His bounty was 21% of that total settlement, and he also will receive 100% of his still pending retaliation claim.

Such FCA fraud is bound to increase once the monies from the federal government’s $1 trillion dollar infrastructure bill start to flow. Experience tells us 5% of those funds will be lost to fraud. That is $225 billion in fraudulent payments. Examples of such future transportation infrastructure projects in the New York City area alone include the construction of the Gateway Hudson River Tunnel, Metro North Railroad’s Penn Station Access, and the repair of the East River Tunnels. Of note, Amtrak will be receiving an additional $68 billion in infrastructure improvement funds, and although Amtrak’s enabling legislation exempts it from the False Claims Act, all of Amtrak’s numerous contractors and subcontractors are fully subject to FCA liability.

So here is the message to all union reps, employees, and managers involved in such transportation infrastructure construction projects: be on the lookout for potential false claims. If you have concrete information showing the misuse of federal or state monies within the past 6-10 years, your first step should be to contact an experienced False Claims Act attorney for a confidential consultation to see if you qualify for what could be a life changing FCA bounty. Start here for more information on the False Claims Act.

The FRSA protects employees from retaliation for “reporting, in good faith, a hazardous safety or security condition.” But what exactly does that mean? In a case of first impression for the Circuit Courts, the Second Circuit analyzes the plain meaning of that statutory language and concludes:

we hold that a railroad employee engages in protected activity under FRSA Section 20109(b)(1)(A) when she reports what she subjectively believes to be a hazardous safety or security condition irrespective of whether that understanding is objectively reasonable.

Ziparo v. CSX Transportation. In other words, a worker does not have to prove both a subjective and objective basis to believe a condition is hazardous. A subjective belief alone is sufficient.

And what constitutes a “hazardous safety or security condition”?  Again applying the plain language of the FRSA statute, the Second Circuit soundly rejects all the district court decisions limiting that term to “physical conditions that are within the control of the rail carrier.” Rather, the Circuit explains why the term is much broader, potentially embracing any work-related condition that may affect the safety of a railroad’s operation:

In sum, FRSA Section 20109(b)(1)(A) protects an employee reporting what she sincerely believes constitutes a hazardous safety or security condition, regardless of whether the railroad or a similarly situated employee would reach the same conclusion or whether the report relates to physical conditions or employment practices that create safety or security hazards.

The Court also held “that complaints of stressful and distracting work conditions may well fall within the scope of hazardous safety or security conditions,” although with the caveat that to qualify such conditions must be generated by or within the control of the railroad, not by an employee’s personal life.

Ziparo is a refreshing decision analyzing and applying the plain meaning of Section 20109’s unique statutory language. This is consistent with the Supreme Court’s approach to statutory interpretation (see for example its recent Bostock decision), and highlights the reversible error of courts applying “various appellate decisions interpreting other whistleblower statutes that” do not contain Section 20109’s specific language.

Bottom line? Rail workers no longer have to provide an objective basis for believing a condition is hazardous, and such conditions are not limited to the physical structure to the railroad. The Court noted this does not impose an unreasonable burden on railroads, because

The FRSA does not require the railroad to take remedial action on the basis of the employee’s report, or even to investigate the reported condition. If the railroad concludes that the report does not really create a safety or security concern, it remains free to dismiss the report entirely. To avoid liability under the FRSA, it need only refrain from punishing the employee making the report.

Ya gotta love that last line: to avoid liability the railroad “need only refrain from punishing the employee making the report.” In other words, just don’t shoot the messenger. What a novel idea! Who knew it was so easy for railroads to avoid FRSA liability? Here is the full decision in Ziparo v. CSX Transportation. For more on the rights of rail workers, go to the free Rail Whistleblower Library.

When a rail worker proves that his or her FRSA protected activity was a contributing factor in the adverse personnel action, the railroad may nevertheless avoid liability if it proves by “clear and convincing evidence” that it would have taken the same adverse action in the absence of the protected activity. The burden of proof is on the railroad to prove that the unfavorable personnel action it imposed was the result of events or decisions independent of the employee’s participation in FRSA protected activity.

But what is such “clear and convincing evidence”? The Administrative Review Board provides some clarity in the case of Lancaster v. Norfolk Southern Railway:

“Clear” evidence means the employer has presented an unambiguous explanation for the adverse action in question. “Convincing” evidence is that which demonstrates a proposed fact is “highly probable.” Clear and convincing evidence “denotes a conclusive demonstration, i.e., that the thing to be proved is highly probable or reasonably certain.”

Circumstantial evidence can be used to prove what an employer “would have done” in its efforts to prove its affirmative defense. The circumstantial evidence it presents can include, among other things: (1) evidence of the temporal proximity between the non-protected conduct and the adverse actions; (2) the employee’s work record; (3) statements contained in relevant office policies; (4) evidence of other similarly situated employees who suffered the same fate; and (5) the proportional relationship between the adverse actions and the bases for the actions.

As such, a railroad’s failure to offer credible, non-discriminatory reasons for its conduct is fatal to a “clear and convincing evidence” defense. An effective way for an employee to cripple the railroad’s defense is to establish that other similarly situated workers who have not engaged in FRSA protected activity were not subjected to disciplinary charges or did not suffer the same severity of discipline.

Here is the ARB’s full decision in Lancaster v. Norfolk Southern Railway, and here is a link to the post on the ALJ’s Lancaster decision.  For more on the rights of rail workers, go to the free Rail Whistleblower Library.

Under the FRSA, it is protected activity to report a “hazardous safety condition.” Whether a worker’s own illness or personal  impairment is such a hazardous condition has been a matter of dispute. But now the Administrative Review Board confirms that a rail worker’s illness can constitute a hazardous condition, the reporting of which cannot be used to discipline the worker. The case is Ingrodi v. CSX Transportation, Inc., and builds on the ARB’s earlier decision in Cieslicki v. Soo Line Railroad Co. ARB No. 2019-0065 (ARB June 4, 2020).

In Cieslicki, the worker legally consumed alcohol before being unexpectedly called into duty. When he explained he had consumed alcohol and therefore could not work, the Railroad terminated his employment. The ARB held that a “hazardous safety or security condition” may result from an employee working in an impaired or diminished physical state, and that the FRSA “does not require that a condition be work-related or state that the condition cannot relate to an employee’s physical condition.” The ARB explained the phrase “hazardous safety or security condition” is broad, and does not require that a condition be “work-related,” limit protection to conditions related exclusively to tracks or equipment, or state that the condition cannot relate to an employee’s personal physical condition. The ARB stressed the primary purpose of the FRSA’s whistleblower protection is to promote safety, and the goal of ensuring safety applies equally to whether a hazardous condition arises from equipment or from the impaired or diminished physical condition of the person operating it.

In Ingrodi, the worker was terminated after calling off sick due to a personal, non work-related illness. The ARB held:

We reiterate our conclusion in Cieslicki that Section 20109(b)(1) of the FRSA “does not require that a condition be ‘work-related’ or state that the condition cannot relate to an employee’s physical condition.” Consistent with this conclusion, we hold that an employee impaired by an illness can create a hazardous safety or security condition under the FRSA. Depending on the circumstances of the particular case, a worker impaired by illness, like a worker impaired by alcohol or like a faulty or unsafe piece of equipment or line of track, could present a danger or threat of serious harm or injury to the worker, to his or her colleagues, and to the public. To hold otherwise could implicitly incentivize impaired employees to work despite the risk of causing great harm or injury to themselves or those around them, for fear of discipline. In light of Section 20109(b)(1)’s broad and general language, the over arching purposes of the FRSA, and our precedent in the same and analogous contexts, we hold that reporting, or refusing to work because of, a personal, non-work related illness may constitute protected activity under Section 20109(b)(1) of the FRSA.

The ARB’s rulings are binding on OSHA and Administrative Law Judges. However, it is important to keep two points in mind. First, when declining to work due to a personal illness or medical condition, it is critical the worker tell the railroad that as a result he or she is unable to safely perform the duties of the job (ideally with a doctor’s note in support). Second, the ARB noted an impaired worker still may be disciplined if the impairment is the result of conduct that is illegal or in violation of FRA regulations.

Here are the full decisions in Ingrodi v. CSX Transportation Inc. and Cieslicki v. Soo Line Railroad Co. For more on the rights of rail workers, see the free Rail Whistleblower Library.

A district court decision in Fresquez v. BNSF Ry. Co. awarding $540,000 in FRSA attorneys’ fees illustrates the factors involved.

Even when it is reasonable for a railroad worker to retain an out-of-state attorney who specializes in railroad law, the hourly rate awarded still must reflect the prevailing rates in the locus of the trial: such an out-of-state attorney

“must provide evidence of the prevailing market rate for similar service by lawyers of reasonably comparable skill, experience, and reputation in the relevant community.”

Normally this is done by providing Affidavits from comparable attorneys who practice employment law in the relevant geographical location.

However, in the absence of such evidence, the district court

“may, in its discretion, use other relevant factors, including its own knowledge, to establish the rate.”

Such factors may include

“the national rates for experienced FRSA and FELA lawyers, plaintiff’s counsel’s experience, and the level of competence required to successfully litigate the FRSA claim.”

Ideally, FRSA practitioners can produce the Affidavits of comparable local attorneys while also arguing for the application of a higher rate based on the national rates charged by experienced FRSA lawyers.

The hours must be reasonable and well-documented. Time spent in travel is compensable at half the hourly rate. Time spent drafting the attorney fee petition is compensable at the full hourly rate.

Here is the full attorney fee decision in Fresquez v. BNSF Railway. For more on the rights of railroad workers, go to the free Rail Whistleblower Library.

When exactly does the 180-day window for filing a FRSA complaint with OSHA open and close? And when can equitable tolling keep that window from shutting?

In Privler v. CSX Transp. Inc. the Administrative Review Board spells it out:

An FRSA complaint must be filed within 180 days after an alleged violation of the FRSA occurred. The statutory limitations period begins to run when a worker “has final, definitive, and unequivocal knowledge of a discrete adverse act.” The date of filing will be considered as “the date of the postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third part commercial carrier, or in person filing at an OSHA office.”

Since Privler’s OSHA Complaint was filed 182 days after the Railroad terminated his employment, it was untimely. That is fatal unless the doctrine of equitable tolling applies, and the ARB spells out the four principal situations in which equitable modification of filing deadlines may apply:

(1) the railroad has actively misled the employee regarding the cause of action;

(2) the employee has in some extraordinary way been prevented from filing his or her action;

(3) the worker has raised the precise statutory claim in issue but has done so in the wrong forum; and

(4) the railroad’s own actions or omissions have lulled the employee into foregoing prompt attempts to vindicate his or her rights.

In the railroad industry, typically there is a series of actions culminating in the imposition of discipline: a notice of disciplinary charge, a notice of disciplinary hearing, the hearing itself, and the post-hearing decision to actually impose a concrete amount of discipline. Each action is arguably adverse and opens up its own 180-day window for filing a FRSA complaint with OSHA. But best practice is to file with OSHA within 180 days of the first arguably adverse action.

Filing within 180 days of the railroad’s post-hearing decision to actually impose a concrete amount of discipline is sufficient. But waiting for the conclusion of the usually lengthy internal and external disciplinary appeal process is not advised, as it only invites the filing of a motion battling over when the employee had or should have had “final, definitive , and unequivocal knowledge of a discrete adverse act.”

Here is the full attorney fee decision in Privler v. CSX. For more on the rights of railroad workers, go to the free Rail Whistleblower Library.

Two recent district court decisions in the 2nd Circuit discuss what constitutes a “hazardous safety condition” under Section 20109(b)(1)(A) of the Federal Rail Safety Act, Ziparo v. CSX Transp. Inc. and Caria v. Metro North Commuter RR.

By now it is fairly well settled that an employee must have both a subjective and objective basis to believe a condition constitutes a hazard: an employee “must show not only that he believed that the conduct constituted a violation, but also that a reasonable person in his position would have believed that the conduct constituted a violation.” The objective reasonableness must be “based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.”

Ziparo notes that actionable hazardous safety conditions “have generally been found to be physical conditions that are within the control of the rail carrier employer” and that “circumstances outside of the carrier’s control and non-work related conditions are not included.” This can be problematic when the hazard arises out of the employee’s own subjective reaction to conduct that is otherwise not safety-related. An important exception is an employee’s reaction to credible threats of physical violence by a co-worker. But as the Caria case illustrates, even then there still must be both a subjective and objective basis for the employee to believe he was reporting a safety condition at the time he made the report.

Here is the full decision in Ziparo and in Caria. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.