The Federal Rail Safety Act is a “make whole remedy” statute, and a federal judge has clarified some important points regarding the range of remedies available to railroad employees who report injuries or safety hazards.

O’Neal v. Norfolk Southern Railroad Company concerned an employee who fell from a chair because the seat was not properly bolted to the frame. After he reported both the injury and the hazardous safety condition, the Railroad accused him of lying about it and fired him. The  jury found the Railroad violated the FRSA and awarded O’Neal back pay, emotional distress damages, and punitive damages.

After the trial O’Neal asked the Judge to also reinstate him, expunge the discipline from his records, add prejudgment interest to his back pay, and award attorney fees. The Judge did so, clarifying those important make whole remedies.


The federal court confirmed that reinstatement with the same seniority status and benefits an employee would have had but for discrimination is the default remedy for wrongfully fired railroad whistleblowers. The only exception is situations where “discord and antagonism between the parties would render reinstatement ineffective as a make-whole remedy.” In those cases, an award of front pay is the appropriate remedy.


The federal court ruled:

the plain language of the FRSA statute makes expungement available when necessary to make the employee whole. . . references to suspension and termination in the personnel files could potentially be harmful to the employee in the future, and they are the direct result of the Railroad’s violation of the FRSA. Expungement is therefore necessary to make the employee whole. . . . Thus the employee is entitled to the expungement of the charge letters, the termination letters, and the letters to the union upholding the termination, as well as all other references to his termination in the Railroad’s employment files.

Prejudgment Interest on Back Pay

The federal court also confirmed “the FRSA mandates that successful employee plaintiffs receive any back pay with interest.” However, the FRSA does not require prejudgment interest on “damages for emotional pain, loss of reputation, personal humiliation, and other nonpecuniary losses.” Here is the full remedies opinion in O’Neal v. Norfolk Southern.

Attorney Fees and Costs

The federal court confirmed that successful FRSA plaintiffs also are entitled “to recover litigation costs, expert witness fees, and reasonable attorney fees.” But how does a court decide what are reasonable attorney fees? The federal court explained:

The starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This number is called the “lodestar,” and there is a strong presumption that the lodestar is the reasonable sum the attorneys deserve. The district court should exclude hours that were not reasonably expended, such as work that was excessive, redundant, or otherwise unnecessary. Downward adjustment of the lodestar is merited only if the prevailing party was partially successful in its efforts, a determination the district court makes on a case-by-case basis. It is the burden of the party seeking an award of fees to submit evidence to support the hours and rate claimed.

A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of  comparable skills, experience, and reputation. Evidence of that rate requires not only the affidavit of the attorney performing the work but also additional affidavits from local attorneys confirming the prevailing rate.

But what of cases where both FRSA and FELA claims are tried together? Hours spent solely on the FELA claim must be excluded, but the “hours spent on legal work that furthers both the FRSA fee-shifting and the FELA non-fee-shifting claims may be included in the lodestar calculation because they would have been expended even if the plaintiff had not included non-fee-shifting claims in his complaint.”

Finally, it is important to remember when the lodestar rate can be increased. The federal judge noted “where the attorney fee is contingent on success, the hourly rate should ordinarily be raised to compensate the attorney for the risk of nonrecovery.” And when a contingency fee based attorney does achieve a successful result, “an upward adjustment of the lodestar is warranted.” In the O’Neal case, these factors resulted in an enhancement of 1.33 times the lodestar rate. Here is the full attorney fees opinion in O’Neal v. Norfolk Southern.

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