OSHA’s Whistleblower Office will never approve a Federal Rail Safety Act settlement that includes confidentiality. Why? Because the FRSA is supposed to remedy the chilling effects of retaliatory actions, not lock them in. And in the railroad grapevine, no retaliatory action goes unnoticed. When employees see a co-worker hammered after raising safety, injury, or fraud concerns, it exercises a profound chilling effect on their willingness to do the same. The only way to remedy that chilling effect is to publicly hold railroads accountable for their violations of the FRSA, which is why OSHA issues press releases announcing FRSA findings against railroads.

But for lawyers, insisting on or agreeing to confidentiality clauses in FRSA settlements invites charges of unethical conduct. Here’s why.

Under Rule 3.4(f) of the Model Rules of Professional Conduct, a railroad attorney cannot ethically propose a settlement agreement that prevents a FRSA complainant from giving relevant factual information to other railroad workers or OSHA. Here is a quote from the leading article on the subject:

Proposed settlement clauses that would expressly bar the plaintiff from voluntarily cooperating with parties, agencies, or lawyers who are suing or investigating the defendant clearly run afoul of Rule 3.4(f), even if they allow for disclosures in response to a subpoena. Equally important, blanket confidentiality clauses that bar any discussion of the underlying facts and make no exception for disclosures of relevant information to other litigants violate the rule as well.

Malone and Bauer, "Unethical Secret Settlements: Just Say No," Trial (Sept. 2010). Click here for a version of the Trial article, and click here for a more in-depth discussion by Prof. Jon Bauer in the Oregon Law Review. Given the FRSA’s provision for punitive damages, it is especially important for OSHA’s Whistleblower Office to have unfettered access to all information relevant to their FRSA investigations. Rail workers simply cannot be barred from sharing their FRSA complaint experiences with OSHA or with co-workers and their attorneys.

And if a FRSA complaint stems from a rail worker’s work related injury, it would be a federal crime for a railroad attorney even to attempt to prevent a FRSA complainant from voluntarily furnishing information regarding his injury that is relevant to another worker’s injury. Section 60 of the FELA makes it a federal crime for a railroad or its attorney to attempt to prohibit such sharing of information among co-workers. 45 USC 60.

Moreover, Rule 5.6(b) of the Model Rules prohibits lawyers from participating in any settlement agreement that restricts a lawyer’s right to practice. Again, to quote Malone and Bauer’s analysis:

settlements that prohibit a plaintiff lawyer from using any information obtained during the case have been found to violate the rule, because such a promise would interfere with the lawyer’s ability to provide effective representation to others suing the same defendant.

So here’s the message to rail labor attorneys representing FRSA complainants: other than the dollar amount of a settlement, just say no to confidentiality in FRSA cases. And here’s the message to railroad attorneys defending FRSA cases: don’t even think about asking for confidentiality, unless of course you enjoy being the subject of bar disciplinary committee proceedings.