What is Adverse Action?
The question arises, in order to qualify as an “adverse action” under the Federal Rail Safety Act, does a railroad’s investigation into an employee’s actions have to result in actual discipline? What if the charge is eventually dropped? No harm no foul? A recent district court decision clarifies the matter:
The Administrative Review Board has repeatedly held that charging an employee with a policy violation, instituting an investigation, or simply threatening adverse action against an employee can constitute adverse action, even when the employee is not ultimately discharged or suspended and suffers no economic harm.
Thus “adverse actions” under the FRSA include not just “discriminatory actions that affect the terms and conditions of employment,” but also any action that would dissuade an objectively reasonable employee from exercising her rights under the law. And the United States Supreme Court stresses that “context matters” when making that assessment. The same action might therefore constitute a minor annoyance in one context and an adverse action in another.
Though the materiality requirement may not be met “any time” an investigation is instituted, the requirement may be satisfied where an investigation–along with its implicit threat of discipline–would dissuade a reasonable employee from exercising her rights under the FRSA.
So, when it comes to adverse action, context matters, and the focus must be on whether a reasonable worker would be discouraged from reporting an injury or unsafe condition if he knew that doing so would subject him to an investigation that has the potential to end in discipline. Here is the district court’s full decision in Renzi v. Union Pacific Railroad Company.
Is Reporting an Injury Also Reporting a Hazardous Safety Condition?
The short answer is, yes it can be. In Wooten v. BNSF Railway Company, a conductor reported that his wrist was injured due to a door latch that was not working properly. He filed a FRSA Complaint citing the protected activity of reporting of a work injury but not specifically claiming he also reported a hazardous safety condition. When the employee filed a FRSA complaint in federal court citing both protected activities, the Railroad argued he was limited to the specific allegations in his OSHA complaint.
The district court disagreed, in a decision confirming that when a worker’s injury report states the injury resulted from some hazardous safety condition, then the employee’s “claim that he engaged in protected activity by reporting a hazardous safety condition is reasonably related to his OSHA complaint.” Here is the district court’s full decision in Wooten v. BNSF Railway Company.
So although it is better form to specifically include any applicable protected activities in the OSHA complaint, it is sufficient if the worker’s report of the injury also refers to a particular hazardous safety condition that caused the injury. For more on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.