The 8th Circuit Court of Appeals confirms that a railroad can violate the FRSA even if it honestly believes an employee violated a rule. In Blackorby II, the employee was disciplined for violating BNSF’s rule requiring the “immediate” reporting of work-related injuries. But reporting a work-related injury is protected activity under FRSA Section 20109, and
Federal Rail Safety Act
Fine Tuning The Expungement Remedy
By Charlie Goetsch on
Posted in Federal Rail Safety Act
When the imposition of discipline violates the Federal Rail Safety Act, it is routine for OSHA or a judge to order its expungement from the railroad’s records. But what if that runs afoul of other laws requiring the preservation of corporate records? In Brough v. BNSF Railway, the Administrative Review Board explains how…
The Burden of Proving Failure to Mitigate Is On the Railroad
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Every injured or terminated employee has a legal duty to make reasonable efforts to mitigate or minimize his or her lost wage damages. But “failure to mitigate” is an affirmative defense, and the burden of proving any such failure falls entirely on the railroad. In Brough v. BNSY Railway, the Administrative Review Board held:
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Disciplinary Waivers Do Not Negate FRSA Rights
By Charlie Goetsch on
Posted in Federal Rail Safety Act
The anti-retaliation provisions of Federal Rail Safety Act Section 20109 are indeed powerful, so powerful they cannot be waived by any disciplinary waiver or “plea bargain.” FRSA subsection (h) reads: “The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.” And In Montes v. …
Is Filing a FELA Complaint Protected Activity?
By Charlie Goetsch on
Posted in Federal Rail Safety Act
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…
ARB Limits Temporal Scope of (c)(1) Protection
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Federal Rail Safety Act Subsection (c)(1) prohibits railroads from denying, delaying, or interfering with an employee’s right to prompt medical treatment for a workplace injury. In Santiago v. Metro North Railroad, the ARB held the scope of (c)(1)’s prohibition was not limited to the immediate aftermath of a workplace injury. Now, in Wever v. …
Spotlight On MBTA Safety Culture
By Charlie Goetsch on
Posted in Federal Rail Safety Act
How bad is the safety culture at the MBTA? So bad the Chief Safety Officer was terminated for demanding correction of critical safety issues. And had to file a whistleblower retaliation complaint to set things right.
The National Transit Systems Security Act (NTSSA) is a federal whistleblower protection statute that prohibits transit authorities such as…
When Equitable Tolling Applies to FRSA Deadlines
By Charlie Goetsch on
Posted in Federal Rail Safety Act
A Circuit Court has clarified when the doctrine of equitable tolling applies to FRSA Section 20109 time limitations.
In Sparre v. United States Dep’t of Labor, the 7th Circuit confirms the FRSA’s various time limitations for filing or appealing are not jurisdictional and therefore are subject to equitable tolling. However, the Court warns such…
The FRSA Protects Hours of Service Act Compliance
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Did you know that rail workers who refuse to violate the Hours of Service Act are protected by Section 20109 of the FRSA? The Norfolk Southern Railway just found out the hard way.
In Lancaster v. Norfolk Southern Railway Company, the NS required a locomotive engineer to continued writing a statement beyond the…
What Is A Good Faith Belief?
By Charlie Goetsch on
Posted in Federal Rail Safety Act
We all know that “reporting in good faith a hazardous safety condition” is protected activity under Section 20109 of the FRSA. But what does “good faith” mean? Is it just the employee’s subjective belief, or must it also be objectively reasonable?
The cases are tending toward requiring both, and March v. Metro North Railroad…