The Federal Rail Safety Act prohibits a railroad from “discriminating in any way” against an employee who engages in the protected activity of raising a safety concern or reporting an injury. Such discrimination can take many forms, but two recent decisions highlight a classic example: namely, treating a worker differently from other similarly situated workers.
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How Not To Settle FRSA Claims
By Charlie Goetsch on
Posted in Federal Rail Safety Act
No matter what a railroad may try to tell you, a Federal Rail Safety Act claim under OSHA jurisdiction cannot be settled without the express written approval of OSHA. Here’s why.
The FRSA itself states: “The rights and remedies in this section may not be waived by any agreement . . .” 49 USC 20109(h).
The Escalating Cost of FRSA Violations
By Charlie Goetsch on
Posted in Federal Rail Safety Act
The damages for violations of the Federal Rail Safety Act just keep expanding. The latest record breaker goes against the Union Pacific Railroad: $175,000 in punitive damages and $100,000 for emotional distress, all for firing a conductor who reported a minor injury.
In addition to the immediate reinstatement, lost wages, and attorney fees ordered,…
FRSA Bars Any Attorney Fee Awards To Railroads
By Charlie Goetsch on
Posted in Federal Rail Safety Act
If a railroad worker wins his Federal Rail Safety Act complaint, the railroad has to pay all his attorney fees. But if a FRSA complaint fails, the railroad cannot recover any attorney fees or costs against the worker.
Administrative Law Judge Adele H. Odegard’s decision in Vason v. Port Authority Trans Hudson (PATH) explains why:…
Naming Names In FRSA Retaliation Complaints
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Instead of naming the railroad, workers are free to name a manager as the defendant in a Federal Rail Safety Act complaint. And there are good reasons for doing so.
When a manager is singled out as illegally retaliating against workers, it is a form of public “shaming” that does not help his future career…
Judge Confirms Broad Scope of FRSA Adverse Actions
By Charlie Goetsch on
Posted in Federal Rail Safety Act
In an important decision clarifying the broad scope of adverse action under the Federal Rail Safety Act, Judge Theresa C. Timlin confirms that the mere act of filing of charges against an injured railroad employee is an unfavorable personnel action sufficient to support a FRSA violation.
The facts in Vernace v. PATH Rail are:…
Bogus Election of Remedies FRSA Defense Finally Laid to Rest
By Charlie Goetsch on
Posted in Federal Rail Safety Act
The long wait is over. The Administrative Review Board has officially laid the railroad’s bogus “election of remedies” defense to rest. In Mercier v. Union Pacific Railroad Co., the ARB has declared once and for all that rail workers are entitled to simultaneously pursue their rights under the Federal Rail Safety Act while also…
New OSHA Whistleblower Manual Issued
By Charlie Goetsch on
Posted in Federal Rail Safety Act
OSHA’s Whistleblower Office has issued a revised and updated Whistleblower Investigations Manual that applies to complaints under the Federal Rail Safety Act. The Manual explains the process from start to finish, and workers and attorneys will find it useful to orient themselves as to the steps involved in FRSA complaints.
Two points of…
When Rail Workers Can Recover For Outrageous Conduct
By Charlie Goetsch on
A leading U.S. Circuit Court of Appeals has clarified when rail workers can recover damages for outrageous conduct by their employer railroad. Building on two cases that I handled (Metro North Railroad v. Buckley in the U.S. Supreme Court and Higgins v. Metro North Railroad in the Second Circuit), the Second Circuit Court of…
Major Decisions Mandate Full Award Of FRSA Attorney Fees
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Fighting Federal Rail Safety Act claims just got a lot more expensive for railroads. Two recent appellate court decisions confirm that—no matter how small a worker’s FRSA economic damages may be–the railroad has to pay the FULL amount of the worker’s attorneys fees and costs. The appellate decisions apply to FRSA cases in the administrative…