Answer: Yes, it can be, according to the United States Department of Labor. Joshua Cleveland v. Long Island Rail Road (SDNY) is a Federal Rail Safety Act case claiming the Railroad retaliated against an employee after he filed a FELA lawsuit. The United States Attorney filed a Statement of Interest on behalf of the DOL confirming three scenarios when a FELA lawsuit can be FRSA protected activity:

First, an employee’s FELA lawsuit can notify the railroad of the work-related personal injury under FRSA subsection (a)(4) if the employee has not already reported the injury to the railroad. . . .

Second, if an employee has already reported the injury to the railroad prior to filing a FELA lawsuit, the employee’s FELA lawsuit can be protected activity if it provides the railroad with more specific notification of the injury. . . if the FELA lawsuit provides more specific information about the injury (such as that the effects of the injury are much more serious than initially reported) or informs a previously unaware railroad decision maker of the injury, then the FELA lawsuit can “notify or attempt to notify” the railroad of the injury under FRSA subsection (a)(4).

Finally, an employee’s testimony during a FELA lawsuit of allegedly unknown and undisclosed details of an injury can constitute more specific notification of the nature and extent of the injury.

This is consistent with the position of the U.S. DOL Administrative Review Board, which holds that

a FELA lawsuit falls under Section 20109(a)(4) only if the lawsuit provides an employer with “more specific information” about the employee’s injury than the employee had previously reported. Section 20109(a)(4) applies, in other words, only if the FELA lawsuit expands the employer’s knowledge of the injury beyond the information in the employee’s initial report (by, for example, providing new details about the extent, severity or causes of the injury).

And that is the standard recently applied by a federal district judge in deciding if a FELA lawsuit qualified as protected activity under subsection (a)(4), Cleveland v. Long Island R.R. Co.

Of course, the contributing factor element and the clear and convincing defense still apply. But all attorneys should be aware of when a client’s FELA lawsuit or testimony qualifies as FRSA protected activity. Here is the U.S. DOL’s Statement of Interest, and here is the full decision in Cleveland v. Long Island R.R. Co.

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