The Rules governing the whistleblower retaliation complaints of railroad workers under Section 20109 of the Federal Rail Safety Act now are final. And the same Rules apply to the whistleblower retaliation complaints of public transit employees under the National Transit Systems Safety Act (NTSSA). Here is the complete text of the Final Rule.

OSHA’s detailed Summary and Discussion of the policies and case law informing the handling of FRSA and NTSSA complaints is well worth a read. Here are several highlights:

Subsection (c)(1)
Citing the ARB’s Decision in Santiago v. Metro North Commuter Railroad, OSHA confirms: “the ‘other discrimination’ for which an employee may seek relief under paragraph (d)(1) necessarily includes a railroad’s denial, delay, or interference with medical or first aid treatment, or failing to promptly transport an injured employee to the nearest hospital”

Subsection (c)(2)’s exception:
“OSHA believes that the safe-harbor in subsection (c)(2) requires that the railroad’s refusal to allow an employee to return to work be in good faith. A retaliatory refusal to permit an employee to return to work cannot properly be regarded as made ‘pursuant to’ FRA’s or the carrier’s own medical standards for fitness for duty under the statute. Any other interpretation of the provision would permit a railroad carrier to refuse to allow an employee to return to work in retaliation against the employee for reporting the injury (which would violate (a)(4)) or as a means for extending retaliatory discipline prohibited by (c)(2). Evidence that a refusal to allow an employee to return to work is based on carrier standards that are not recorded in the carrier’s official policies, not uniformly applied, or not medically reasonable may help to demonstrate that the refusal is due not to a legitimate safety concern of the railroad carrier by rather is motivated by retaliatory intent.”

When 180 day window begins to run:
The 180 window to file a complaint with OSHA begins when the alleged violation occurs: “this is considered to be when the retaliatory decision has been both made and communicated to the employee. In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer’s decision to take an adverse action, not when the employee learns of the retaliatory nature of the action.”

Temporal proximity may be years:
An employee can satisfy the contributing factor standard “if he or she shows that the railroad’s adverse action took place within a temporal proximity of the protected activity, or at the first opportunity available to the retaliating manager, giving rise to the inference that it was a contributing factor in the adverse action. For example, years between the protected activity and the retaliatory actions did not defeat a finding of a causal connection where the manager did not have the opportunity to retaliate until he was given responsibility for making personnel decisions.”

Interest rate on back pay:
“Under the FRSA and NTSSA, interest on back pay will be computed by compounding daily the Internal Revenue Service (IRS) interest rate for the underpayment of taxes, which is the Federal short-term rate plus three percentage points.”

Back pay includes RRB allocations:
Because the FRSA is a make whole remedy, railroads are required “to submit the appropriate documentation to the Railroad Retirement Board allocating the back pay to the appropriate months.”

Front pay:
“Front pay has been recognized as a possible remedy under whistleblower statutes where actual reinstatement is not possible due to the impossibility of a productive and amicable working relationship, or the company no longer has a position for which the employee is qualified, or the employee is medically unable to work due to major depression resulting from the retaliation.”

Injunctive relief:
“OSHA believes that injunctive relief to abate a violation of a specific employee’s rights can be an important element of making the employee whole. Such relief could include, for example, an order requiring a railroad to expunge certain records from an employee’s personnel file, or not apply a particular company policy to an employee, or post a notice regarding the resolution of the employee’s whistleblower complaint to remedy the employee’s reputational harm. In some instances, an order to provide training to managers or a notice to employees 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.”

Hearsay is admissible in ALJ trials:
“The formal rules of evidence will not apply to proceedings before an ALJ” and “hearsay evidence is often appropriate in whistleblower cases, as there often are no relevant documents or witnesses other than hearsay to prove retaliation.”

15 day notice before filing in district court eliminated:
OSHA eliminated the requirement to provide 15 day notice before filing a de novo complaint in district court, and replaced it with a requirement that “within seven days after filing a complaint in district court, an employee must provide a file-stamped copy of the complaint to the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending.”

Clarifying the FRSA’s relationship to the Federal Employers’ Liability Act (FELA) on the job injury law, OSHA confirms: “FRSA’s election of remedies provision generally does not bar complainants from bringing both a FRSA retaliation claim and a complaint for compensation for a workplace injury under FELA. The conduct that gives rise to a retaliation claim under FRSA generally differs from the conduct that causes a worker’s injury, which is the subject of a FELA claim. The FELA involves a general standard of care that a railroad owes to a worker while the FRSA is akin to an intentional tort.”

Here is the complete text of OSHA’s Summary and Rules, which is at 80 FR 69115-69132. The Rules are at 29 CFR 1982.100-115. For more on Section 20109 of the FRSA, go to the free Rail Whistleblower Library.