When the imposition of discipline violates the Federal Rail Safety Act, it is routine for OSHA or a judge to order its expungement from the railroad’s records. But what if that runs afoul of other laws requiring the preservation of corporate records? In Brough v. BNSF Railway, the Administrative Review Board explains how to finesse that dilemma:

We note it may be futile to order an employer to “expunge” information which other laws may require the employer to maintain. Because businesses may not be able to legally destroy company or corporate records, ALJs should be cautious and specific when ordering an employer to “expunge” information from an employee’s personnel record. Where an ALJ finds it necessary to order an employer to disregard certain information which had been placed in an employee’s personnel record, it would be more realistic, for example, for the ALJ to require that the information be placed in a sealed and/or restricted subfolder or that the employer be specifically prohibited from relying on the information in future personnel actions or referencing it to prospective employers.

See also the ARB’s decision in Leiva v. Union Pacific Railroad Company. The expungement of illegal discipline is a vitally important make whole remedy, and such fine tuning may be necessary to ensure it functions as intended.

For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

 

Every injured or terminated employee has a legal duty to make reasonable efforts to mitigate or minimize his or her lost wage damages. But “failure to mitigate” is an affirmative defense, and the burden of proving any such failure falls entirely on the railroad. In Brough v. BNSY Railway, the Administrative Review Board held:

A wrongfully discharged employee seeking back pay has a duty to exercise reasonable diligence to mitigate his damages by searching for substantially equivalent work. However, the employer must prove that its employee failed to mitigate by submitting evidence that would establish that substantially equivalent positions were available and that the employee failed to attempt diligently to secure such position.

BNSF submitted no evidence of available comparable jobs for any of the times during which Brough was not working . . . BNSF instead relied solely on Brough’s admission that he did not look for a comparable job during these times. . . . Because BNSF failed to meet its burden of proof, we affirm the ALJ’s back pay award.

So a railroad cannot just rely on an employee’s admission that he or she did not apply for comparable jobs. The burden is on the railroad to prove there were comparable jobs reasonably available to the employee during the lost wage time period. Failure to present such proof is fatal to the railroad’s “failure to mitigate” affirmative defense.

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

 

The anti-retaliation provisions of Federal Rail Safety Act Section 20109 are indeed powerful, so powerful they cannot be waived by any disciplinary waiver or “plea bargain.” FRSA subsection (h) reads: “The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.” And In Montes v. Union Pacific Railroad Company, a federal judge rejected a railroad’s attempt to use a disciplinary waiver to bar the employee’s FRSA complaint:

There is no canon against using common sense in construing laws as saying what they obviously mean. The statute is clear that an employee may not waive by agreement the rights and remedies provided by Section 20109. . . . waivers under a collective bargaining agreement, signed by an employee for the conduct which forms the base of his FRSA complaint, do not bar an FRSA claim.

The judge went on to note that such disciplinary leniency agreements are not formal settlements and do not in any way affect an employee’s rights under the FRSA.

All employees should be aware that signing such waivers in order to minimize the amount of unfair discipline assessed against them does not negate their right to bring a FRSA complaint. Here is the complete Montes decision. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

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.

 

Federal Rail Safety Act Subsection (c)(1) prohibits railroads from denying, delaying, or interfering with an employee’s right to prompt medical treatment for a workplace injury. In Santiago v. Metro North Railroad, the ARB held the scope of (c)(1)’s prohibition was not limited to the immediate aftermath of a workplace injury. Now, in Wever v. Montana Rail Link, the ARB overrules Santiago and limits the scope of (c)(1) protection to the temporal period immediately following an on-the-job injury:

we will no longer adhere to the interpretation of subsection (c)(1) that the Board had previously set forth in Santiago. Instead, we hold that subsection 20109(c)(1) prohibits an employer from denying, delaying, or interfering with medical treatment or first aid only in the temporal period immediately following a workplace injury. Subsection 20109(c)(1)’s provision for prompt “medical or first aid treatment” does not create a statutory right to ongoing or unlimited medical treatment of choice over the entire course of a treatment plan or recovery period for a workplace injury.

The ARB did not lay down any specific temporal limit or boundaries, noting “the determination as to what constitutes an appropriately limited temporal period will necessarily be fact-driven.” So the temporal scope of (c)(1) will have to be determined on a case-by-case basis. What is “appropriate” will depend on factors such as the nature of the employee’s injury and the local availability of treatment options for such an injury.

Here is the complete Wever decision. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

 

How bad is the safety culture at the MBTA? So bad the Chief Safety Officer was terminated for demanding correction of critical safety issues. And had to file a whistleblower retaliation complaint to set things right.

The National Transit Systems Security Act (NTSSA) is a federal whistleblower protection statute that prohibits transit authorities such as the MBTA from retaliating in any way against employees who raise safety concerns and cooperate with safety investigations by the Federal Transit Authority (FTA) or Federal Railroad Administration (FRA).

In March 2019 my client Ron Nickle was the MBTA’s Chief Safety Officer. Under Federal safety regulations, the first duty of the Chief Safety Officer is to ensure the safety of the MBTA’s passengers and employees. And MBTA management is supposed to provide its CSO with the independent autonomy to do so.

On the morning of March 21st Ron Nickle met with the Federal Transit Administration, Federal Railroad Administration, and State DPU to report on the results of his safety audits and inspections. He highlighted critical safety issues and discussed corrective actions to be taken.

The next morning the MBTA called him into a meeting and abruptly terminated him, giving no reason other than a desire “to move in a different direction.”

On June 27th Ron filed a NTSSA whistleblower complaint with OSHA’s Whistleblower Directorate office in Boston, claiming he was terminated due to management’s negative reaction to his safety activities, inviting as it did regulatory intervention and public scrutiny.

OSHA’s Whistleblower Directorate has served the MBTA with the Complaint and opened up a full investigation. OSHA has the power to enforce a spectrum of remedies against MBTA management, including reinstatement, make whole economic damages, punitive damages, and unlimited reputational damages. Ron will continue to cooperate with federal and state investigators in order to improve the safety of MBTA operations.

Here is the Boston Globe’s article on this developing case. For more on the whistleblower rights of transit and railroad employees, go to the free Rail Whistleblower Library.

 

A Circuit Court has clarified when the doctrine of equitable tolling applies to FRSA Section 20109 time limitations.

In Sparre v. United States Dep’t of Labor, the 7th Circuit confirms the FRSA’s various time limitations for filing or appealing are not jurisdictional and therefore are subject to equitable tolling. However, the Court warns such tolling “is granted sparingly only when extraordinary circumstances far beyond the litigant’s control prevented timely filing.”

Here are the four principal situations in which equitable tolling may apply:

(1) when the opposing party has actively misled the movant about the cause of action;

(2) when the movant has in some extraordinary way been prevented from filing his or her appeal before the Board;

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

(4) when the opposing party’s own acts or omissions have lulled the movant into forgoing prompt attempts to vindicate his rights.

The Court also notes that “parties represented by counsel are ordinarily not entitled to equitable tolling.” This is because attorneys are “presumptively aware” of any applicable time limits, and “clients are accountable for the acts and omissions of their attorneys.”

Here is the full decision in Sparre. For more on Section 20109 deadlines, go to FRSA Statute of Limitations. For more on the rights of railroad workers under the FRSA, go to the free Rail Whistleblower Library.

 

Did you know that rail workers who refuse to violate the Hours of Service Act are protected by Section 20109 of the FRSA? The Norfolk Southern Railway just found out the hard way.

In Lancaster v. Norfolk Southern Railway Company, the NS required a locomotive engineer to continued writing a statement beyond the time he outlawed. When he refused to violate the HSA by continuing to write the statement beyond his HSA deadline, his NS managers accused him of insubordination and suspended him without pay for 40 days.

The Judge held that is a violation of the FRSA. Noting “The Hours of Service Act was enacted to protect train crews and the public from the life-threatening risks posed by crew fatigue,” the Judge found the NS managers put their demand “for written statements ahead of their duty to obey and enforce a federal statute designed to keep railroads safe” and in so doing intentionally violated the FRSA.

The Judge awarded damages for back pay and emotional distress, as well as punitive damages due to NS’s reckless indifference to the right of its employees to comply with the HSA and its callous disregard of the safety considerations protected by the HSA. Here is the full Lancaster Decision. For more on the rights of rail employees under the FRSA, go to the free Rail Whistleblower Library.

 

We all know that “reporting in good faith a hazardous safety condition” is protected activity under Section 20109 of the FRSA. But what does “good faith” mean? Is it just the employee’s subjective belief, or must it also be objectively reasonable?

The cases are tending toward requiring both, and March v. Metro North Railroad is a recent example. There, the district judge found FRSA Section (b)(1)((A) requires both a subjective and objectively reasonable belief there was a hazardous condition. But in Frost v. BNSF Railway, the 9th Circuit confirmed that when answering that question, the focus always must be on the worker, not the railroad.

In Frost, the Circuit Court held it is reversible error to instruct a jury that a railroad cannot be held liable if it terminated an employee “based on its honestly held belief that the worker engaged in the conduct for which he was disciplined.” It is reversible error because an employee can be guilty of a disciplinary offense and still recover under the FRSA “if his filing of an injury report played only a very small role in the railroad’s decision-making process.”

Bottom line? A rail worker must show not only that he believed the conduct or condition constituted a safety hazard, but also that a reasonable person in his position would have believed so. What the railroad may believe is irrelevant.

So when reporting a safety hazard, make sure there is both a subjective and objective basis for belief. Here are earlier posts on good faith under the FRSA. For more on the rights of employees under the FRSA, go to the free Rail Whistleblower Library.

 

When can a $13,000 FELA injury turn into a $3.2 million Judgment against a railroad? Answer: When the railroad violates the Federal Rail Safety Act. Wooten v. BNSF Railway is yet another demonstration of the transformative power of Section 20109’s whistleblower protections.

When Zachary Wooten reported a wrist injury, BNSF accused him of dishonesty and fired him. The jury decided to send a message BNSF will never forget: $1.4 million in front pay, $500,000 for emotional distress, and $249,999 in punitive damages. The District Judge upheld the jury’s verdict, and added $42,732 in prejudgment interest, $657,107 in attorney fees, and $339,014 in costs and expenses, for a total Judgment of over $3.2 million.

The 20 page Decision is worth reading for many reasons, but here is a quote regarding the front pay award:

Wooten was wrongfully terminated by BNSF, cutting short what he hoped would be a lifetime career with great benefits and excellent pay. Prevailing under the FRSA entitles Wooten “to all relief necessary to make [him] whole.” The Court is convinced that a front pay award of $1,407,978 falls squarely within that statutory directive.

The FRSA allows FELA attorneys to look jurors in the eye and ask them “to send a message” that violations of the FRSA will not be tolerated. And jurors have done just that, sending multi-million dollar messages in cases where the FELA injury is relatively minor. It remains to be seen if railroads will ever “get it” and actually change their retaliatory cultures. But until then, judgments like Wooten will continue to be handed down. For more on the rights of rail employees under the FRSA, go to the free Rail Whistleblower Library.