To be timely, a complaint must be filed with OSHA within 180 days of 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.
This means railroad workers who are subjected to an adverse action after engaging in protected activity must assume that adverse action is retaliatory and file a FRSA complaint with OSHA within 180 days. For example, if a worker raises a safety concern, and then is subjected to a disciplinary charge, that worker must assume the charge is retaliatory and file a FRSA complaint no later than 180 days after learning of the charge.
Now comes a district court decision confirming that once the 180 day window has closed, it cannot be reopened for the same adverse action. In Sweatt v. Union Pac. R.R. Co., 2016 U.S.Dist LEXIS 3609 (ND Ill January 12, 2016), the Railroad refused to pay for surgery necessitated by an employee’s work related injury. Well over 180 days later, the employee repeated his demand that the Railroad pay for the surgery and the Railroad again refused. It was only after the second denial for the same surgery that the employee filed a FRSA complaint with OSHA. The Court rejected such an attempt to reopen the 180 window because the Railroad’s second denial “changed nothing” and “did not injure the employee afresh.”
So, employees must be aware that a 180 window opens for each “discrete act” of retaliation. Such discrete acts include the filing of disciplinary charges, suspension, termination, failure to promote, denial of transfer, or refusal to hire. The window opens when the employee learns of such a discrete act, and closes 180 days later. And once closed, the window cannot be reopened for that same adverse act.
What is the take away for railroad workers? Whenever they are targeted for adverse actions after engaging in protected activity, they should consult with a knowledgeable union rep or attorney to confirm whether a FRSA complaint must be filed with OSHA.