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Category Archives: Federal Rail Safety Act

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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

Article Confirms Railroad Culture of Retaliation

Posted in Federal Rail Safety Act
Although it comes as no surprise to railroad employees, an investigative article exposes for the rest of the country how railroads continue to retaliate against workers who report safety hazards or injuries. The article is entitled: For Big Railroads, a Carload of Whistleblower Complaints and is published by FairWarning Reports. The article notes that from… Continue Reading

More On the FRSA’s “Clear and Convincing Evidence” Defense Standard

Posted in Federal Rail Safety Act
On the heels of its signal en banc decision in Powers v. Union Pacific Railroad Company, the Administrative Review Board has issued another important decision further clarifying the standard for a “clear and convincing evidence” defense in Federal Rail Safety Act whistleblower retaliation cases. The case is the ARB’s decision affirming the remand ruling in… Continue Reading

Another Circuit Court Shoots Down “Election of Remedies” Defense

Posted in Federal Rail Safety Act
In a resounding decision, the 4th Circuit Court of Appeals explains why a rail worker’s pursuit of a racial or sexual discrimination claim does not constitute an “election of remedies” barring that worker from pressing a Federal Rail Safety Act Section 20109 whistleblower retaliation claim. In Lee v. Norfolk Southern Railway Company, carman Charles Lee… Continue Reading

When Context Is Everything

Posted in Federal Rail Safety Act
When does a sentence not mean what it seems to say? When it is quoted out of context. And that is certainly the case with one sentence in the 8th Circuit’s Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014), decision railroad attorneys love to rip out of context and wave at judges… Continue Reading

FRSA District Court Decisions Update

Posted in Federal Rail Safety Act
The trickle of federal district court FRSA decisions has turned into a steady stream. To keep up, here is a listing of recent district court opinions interpreting Section 20109 of the Federal Rail Safety Act, with a summary of their significance. Temporal proximity Myles v. Northeast Ill. Reg’l Commuter Rail Corp., 2015 U.S. Dist. LEXIS… Continue Reading

Railroads Cannot Interfere With Injured Worker Medical Treatment

Posted in Federal Rail Safety Act
In the landmark decision of Santiago v. Metro North Railroad, the Administrative Review Board held that Federal Rail Safety Act “Section 20109(c)(1) bars a railroad from denying, delaying, or interfering with an employee’s medical treatment throughout the period of treatment and recovery from a work injury.” The Administrative Review Board also held that a prima… Continue Reading

A Miscellany of FRSA Updates

Posted in Federal Rail Safety Act
Here are some “need to know” developments affecting Federal Rail Safety Act Section 20109 railroad whistleblower retaliation matters. New Rules of Practice For ALJ Trials As of June 18, 2015, a new set of Rules of Practice and Procedure will apply to the trial of whistleblower cases before U.S. DOL Administrative Law Judges. An increasing… Continue Reading

Administrative Review Board Clarifies FRSA Burdens of Proof

Posted in Federal Rail Safety Act
In a rare en banc decision, the U.S. Department of Labor’s Administrative Review Board explains why the Federal Rail Safety Act’s distinct two step burden of proof process must never be merged into one. Powers v. Union Pacific Railroad Company also is significant for reminding us that the subjective evaluations of railroad managers carry virtually… Continue Reading

How to Protect Medical Absences Without FRSA Subsection (c)(2)

Posted in Federal Rail Safety Act
Every day, the operations of our nation’s railroads place at risk the safety of countless passengers, employees, drivers at crossings, contractors along the tracks, and the homes, schools, and work places in communities through which trains carry toxic and explosive materials. If a railroad worker is suffering from a medical condition rendering him fatigued, unable… Continue Reading

Third Circuit Narrows Scope of FRSA Medical Note Protection

Posted in Federal Rail Safety Act
Federal Rail Safety Act Subsection c(2) prohibits railroads from disciplining employees “for following the orders or treatment plan of a treating physician.”  For the past six years, the U.S. Department of Labor has interpreted the scope of c(2) protection to include off duty injuries and medical conditions as well as on duty injuries: see the… Continue Reading

ALJ Rejects Overly Broad Settlement Agreement

Posted in Federal Rail Safety Act
In a warning to over-reaching defense attorneys, an Administrative Law Judge has refused to approve a proposed whistleblower retaliation settlement agreement because it “is so overbroad as to contravene public policy.” The Agreement attempted to release “both corporate and individual respondents of all claims known and unknown of any and every kind,” and included a… Continue Reading

The Broad Scope of FRSA Adverse Action Reaffirmed

Posted in Federal Rail Safety Act
A federal judge has confirmed the principle that “adverse action” prohibited by the Federal Railroad Safety Act is any action that would dissuade a reasonable employee from engaging in FRSA protected activities (such as reporting injuries or safety hazards or following a treating doctor’s orders). It is not limited to the actual imposition of discipline,… Continue Reading

Late Injury Report Discipline Results in Summary Judgment Against Railroad

Posted in Federal Rail Safety Act
Railroad defense lawyers love to file summary judgment motions because it delays the trial while padding their hourly bills.  But the Federal Rail Safety Act now allows employees to turn such motions into a sword that guts the railroad’s defense. The facts in Smith-Bunge v. Wisconsin Central, Ltd  follow a familiar pattern. Todd Smith-Bunge felt… Continue Reading

Two More Federal Court FRSA Decisions

Posted in Federal Rail Safety Act
Railroads are running out of defenses to the Federal Rail Safety Act. Their initial “election of remedies” gambit is dead and buried. Their second line of defense–charging employees who report injuries with “falsification and dishonesty”–has been obliterated by the “inextricably intertwined” principle upheld by judges and appellate courts. In desperation, railroads have been forced to… Continue Reading

Federal Courts Protect Rail Workers Refusal To Violate Safety Regulations

Posted in Federal Rail Safety Act
Rail workers under management pressure to violate FRA safety regulations, take heart. Two ground breaking federal court decisions uphold your Federal Rail Safety Act right to be free from retaliation when you refuse to violate federal safety regulations. Gregory Morgan v. Norfolk Southern Railway Co., was brought by a Road Foreman after he was demoted… Continue Reading

Bad Week For Pan Am Railways

Posted in Federal Rail Safety Act
Twice in the same week, Pan Am Railways has been slammed with the statutory max in Federal Rail Safety Act punitive damages: once from a federal jury expressing its outrage at Pan Am’s profoundly unsafe culture and again from a Judge whose excoriating decision describes that culture in damning detail. The federal jury verdict came… Continue Reading

The Price Railroads Pay For Ignoring the FRSA

Posted in Federal Rail Safety Act
Well over a year before its string of death and derailment, Metro North was subjected to the first Federal Rail Safety Act whistleblower jury trial in the nation, Barati v Metro North. During that trial, cross examination of the Heads of Metro North’s Safety, Training, and Track Departments exposed the disconnect between the Railroad’s window dressing… Continue Reading

Metro North Hit With Seven FRSA c(2) Violations

Posted in Federal Rail Safety Act, Railroad Injuries
Once again, the federal government is telling Metro North that its “discipline trumps safety” culture must change. OSHA’s Whistleblower Directorate has found Metro North violated subsection c(2) of the Federal Rail Safety Act in seven cases. In each case, the employee followed his doctor’s order to stay home because he could not safely perform his… Continue Reading