When a BNSF employee reports an on-the-job injury, the Railroad orders the employee to disclose medical information to a medical case manager. But when an employee reports a non-work related injury, the Railroad leaves them alone. BNSF employee Travis Klinger reported a work injury and was ordered to contact such a medical manager. When he declined to do so, he was suspended for “failure to comply with a direct order.” The Administrative Law Judge reversed that discipline and ordered BNSF to pay $100,000 in punitive damages. Klinger v. BNSF Railway.

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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.


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What Is A “Good Faith” Refusal?

Under subsection (a)(2) of the Federal Rail Safety Act, it is protected activity for an employee “to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety.” Now comes a Circuit Court decision clarifying what qualifies as “a refusal” to violate a FRA safety regulation.


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A $1.15 Million SPA Whistleblower Settlement

It took four long years, but a full measure of justice has come to my client Captain John Loftus. John was the Captain of a 850 foot long container ship who took safety seriously. After his employer ignored his internal reports of unsafe conditions, John went outside to the American Bureau of Shipping and Coast Guard, who forced Horizon Lines to correct the conditions. Horizon then found a pretext to fire John from his Master position. Both the Administrative Law trial Judge and the Administrative Review Board appeals judges ruled in his favor, ordering over $1.15 million in back pay, emotional distress, punitive damages, attorney’s fees and costs. John refused to compromise, ultimately forcing the Company to pay the full $1.15 million, with no confidentiality. So hats off  to John for insisting on clearing his reputation while being made whole.


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While railroaders and truckers generate the most cases, seamen and merchant mariners also are protected from retaliation when they blow the whistle on safety issues. The Seaman’s Protection Act prohibits retaliation against any seaman who reports a work related injury or who reports to the U.S. Coast Guard or American Bureau of Shipping “that a violation of a maritime safety law or regulation has occurred.” In 2013 Captain John Loftus brought a landmark SPA case against Horizon Lines and Matson Alaska when they fired him after he reported numerous safety violations to the USCG and ABS.

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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