The FRSA protects employees from retaliation for “reporting, in good faith, a hazardous safety condition.” In a recent landmark decision, the 2nd Circuit Court of Appeals held that such good faith only requires proof of a subjective belief, and rail workers do not have to prove both a subjective and objective basis for believing a
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Transportation Infrastructure Fraud Whistleblowing
By Charlie Goetsch on
Posted in False Claims Act fraud
By now most rail industry union reps and attorneys know there are federal statutes protecting railroad and mass transit employees from whistleblower retaliation. But there is another special federal law that allows such workers to reap multimillion dollar bounties.
The name of that statute is the False Claims Act (FCA). The purpose of the False…
FRSA Alert! Landmark Decision Clarifies Good Faith Safety Reporting
By Charlie Goetsch on
Posted in Federal Rail Safety Act
The FRSA protects employees from retaliation for “reporting, in good faith, a hazardous safety or security condition.” But what exactly does that mean? In a case of first impression for the Circuit Courts, the Second Circuit analyzes the plain meaning of that statutory language and concludes:
we hold that a railroad employee engages in protected
…
What Is Clear and Convincing Evidence?
By Charlie Goetsch on
Posted in Federal Rail Safety Act
When a rail worker proves that his or her FRSA protected activity was a contributing factor in the adverse personnel action, the railroad may nevertheless avoid liability if it proves by “clear and convincing evidence” that it would have taken the same adverse action in the absence of the protected activity. The burden of proof…
When Reporting a Worker’s Illness Is Protected From Discipline
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Under the FRSA, it is protected activity to report a “hazardous safety condition.” Whether a worker’s own illness or personal impairment is such a hazardous condition has been a matter of dispute. But now the Administrative Review Board confirms that a rail worker’s illness can constitute a hazardous condition, the reporting of which cannot be…
What Determines the Hourly Rate for Attorney Fee Awards?
By Charlie Goetsch on
Posted in Federal Rail Safety Act
A district court decision in Fresquez v. BNSF Ry. Co. awarding $540,000 in FRSA attorneys’ fees illustrates the factors involved.
Even when it is reasonable for a railroad worker to retain an out-of-state attorney who specializes in railroad law, the hourly rate awarded still must reflect the prevailing rates in the locus of the…
More On The FRSA’s 180 Day Filing Window
By Charlie Goetsch on
Posted in Federal Rail Safety Act
When exactly does the 180-day window for filing a FRSA complaint with OSHA open and close? And when can equitable tolling keep that window from shutting?
In Privler v. CSX Transp. Inc. the Administrative Review Board spells it out:
An FRSA complaint must be filed within 180 days after an alleged violation of the
…
What Qualifies As A Hazardous Safety Condition?
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Two recent district court decisions in the 2nd Circuit discuss what constitutes a “hazardous safety condition” under Section 20109(b)(1)(A) of the Federal Rail Safety Act, Ziparo v. CSX Transp. Inc. and Caria v. Metro North Commuter RR.
By now it is fairly well settled that an employee must have both a subjective…
FRSA ALERT: US Supreme Court Clarifies FRSA Causation
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Some recent decisions by the ARB and the 6th, 7th, and 8th Circuits have muddled the causation standard for FRSA whistleblower retaliation cases. This past week’s United States Supreme Court’s landmark decision in Bostock v. Clayton County, 2020 U.S. LEXIS 3252 (June 15, 2020), illuminates the error of those decisions.
Here is the Title…
The Scope of Temporal Proximity
By Charlie Goetsch on
Posted in Federal Rail Safety Act
We know the closer in time between a protected activity and an adverse action, the more powerful is the inference the protected activity was a contributing factor to the adverse action. Indeed, where the protected act and the retaliation occur in quick succession, the inference is overwhelming.
But the opposite is true: the further the…