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Category Archives: Federal Rail Safety Act

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Second Circuit Sidesteps Subsection (c)(1) Issues

Posted in Federal Rail Safety Act
Federal Rail Safety Act subsection (c)(1) prohibits railroads from denying, delaying, or interfering with the medical treatment of employees “injured during the course of employment.” In a fact driven decision, the Second Circuit Court of Appeals sidesteps deciding the temporal scope of that protection (just first aid or entire course of treatment?) and its interpretative… Continue Reading

What Is a Work-Related Illness?

Posted in Federal Rail Safety Act
Federal Rail Safety Act Section 20109(a)(4) protects rail workers who notify their railroad of “a work-related personal injury or work-related illness.” Injuries usually are pretty obvious. But what qualifies as “a work related illness”? The federal court in Williams v. Ill. Cent. R.R. holds that any illness arising during the course of employment is included,… Continue Reading

A Tale of “Malicious Compliance”

Posted in Federal Rail Safety Act
How bad is it on New Jersey Transit Rail? So bad, the NJT Chief Compliance Officer (my client Todd Barretta) had to file a Federal Rail Safety Act whistleblower retaliation complaint after he was terminated for insisting the Railroad comply with FRA safety regulations. Here is the Bloomberg article. So bad, NJT Rail employees who… Continue Reading

Update on Notable FRSA Cases

Posted in Federal Rail Safety Act
The steady stream of FRSA Section 20109 whistleblower decisions continues apace. Here are some recent notable decisions to keep in mind. Railroad Bad Faith Conduct The decision by U.S. District Judge Susan Richard Nelson in Johnston v. BNSF Railway Company is remarkable in several respects. Judge Nelson granted the employee’s Motion for Reconsideration and reversed… Continue Reading

What Is A Hazardous Safety Condition?

Posted in Federal Rail Safety Act
Rail workers who report a “hazardous safety condition” are protected from retaliation by FRSA subsection (b)(1)(A). There are not many cases discussing the scope of that protection, but a recent federal district court decision brings it into sharper focus. Head v. Norfolk Southern Railway Company. The 3rd Circuit was the first court to comment on… Continue Reading

Recent FRSA Circuit Court Decisions

Posted in Federal Rail Safety Act
The 8th Circuit has issued a spate of FRSA decisions falling outside the main stream of other Circuits. It is important to put them in perspective. Araujo v. Kuduk: a distinction without a difference Citing the Congressional Record and the leading whistleblower decision in Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir.… Continue Reading

ARB Reaffirms (c)(2) Protects Non Work Related Medical Conditions

Posted in Federal Rail Safety Act
In a major decision with national implications, the Administrative Review Board confirms that Federal Rail Safety Act subsection (c)(2) does indeed protect treatments for non-work related medical conditions. Williams v. Grand Trunk Western Railroad. In so doing, the ARB explicitly rejects the 3rd Circuit’s holding in Bala v. PATH, which imposed a work related limitation on… Continue Reading

New Guidelines on FRSA Settlement Agreements

Posted in Federal Rail Safety Act
Recognizing it’s hard to blow the whistle once you’ve been gagged, OSHA has issued new guidelines prohibiting the use of gag and confidentiality clauses in settlement agreements. See Policy Guidelines for Approving Settlement Agreements in Whistleblower Cases. OSHA reviews settlement agreements between whistleblowers and their employers “to ensure they are fair, adequate, reasonable, and in… Continue Reading

ARB Clarifies FRSA Punitive Damages Standard

Posted in Federal Rail Safety Act
The Administrative Review Board has handed down an important punitive damages decision that also shows how to eliminate a railroad’s affirmative defense. In Jason Raye v. Pan Am Railways, Inc., the Railroad charged the employee with making false statements in a Federal Rail Safety Act complaint filed with OSHA. Although Raye was never actually disciplined… Continue Reading

ARB Clarifies FRSA Burdens of Proof

Posted in Federal Rail Safety Act
In a major en banc decision, the Administrative Review Board clarifies the burdens of proof applicable to ALJ whistleblower trials and explains how to apply that standard. Palmer v. Canadian National Railway. This is a must read decision for anyone interested in Federal Rail Safety Act whistleblower matters, but here are some of the highlights: Proof… Continue Reading

More On FRSA Punitive Damages

Posted in Federal Rail Safety Act
Another Circuit Court has clarified the standard for awarding punitive damages to rail whistleblowers, this time in the context of jury instructions.  After Springfield Terminal Railway Company fired Jason Worcester for raising safety concerns, he filed a Federal Rail Safety Act whistleblower complaint in federal court.  The district judge instructed the jury that:  you can award… Continue Reading

Spotlight on CSX Retaliation

Posted in Federal Rail Safety Act
You can tell a lot about a workplace culture by how managers react to employee safety complaints. Enlightened managers welcome safety complaints, benighted managers suppress them. Enlightened managers view such complaints as a valuable opportunity for improvement, and underscore the first importance of safety by publicly thanking those employees. Benighted managers view such complaints as… Continue Reading

Guideposts For FRSA Punitive Damages

Posted in Federal Rail Safety Act
What are the guideposts for determining the amount of punitive damages in Federal Rail Safety Act cases? According to the 10th Circuit’s decision in BNSF Railway Company v. US DOL ARB [Cain], there are three guideposts whose application is informed by the text of Section 20109: The first and most important indicator of the reasonableness… Continue Reading

Expansive Scope of FRSA Adverse Action

Posted in Federal Rail Safety Act
The boundaries of Federal Rail Safety Act adverse action keep expanding. In Fricka v. National Railroad Passenger Corporation, the Administrative Review Board confirms that FRSA adverse action goes far beyond the limits set by Title VII and Burlington Northern v. White. For example, the following actions are adverse under the FRSA: merely threatening discipline against… Continue Reading

OSHA Issues Final FRSA and NTSSA Rules

Posted in Federal Rail Safety Act
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… Continue Reading

FRSA Alert! Expansive Scope of Employee Right to Medical Treatment Confirmed

Posted in Federal Rail Safety Act
Federal Rail Safety Act Subsection (c)(1) prohibits railroads from denying, delaying, or interfering with the medical treatment “of an employee who is injured during the course of employment.” And (c)(1) also requires that railroads provide prompt transportation to the nearest hospital for employees who are “injured during the course of employment.” Now, in a case… Continue Reading