Refreshing words from FRA Administrator Joe Szabo here at the National Mediation Board’s Passenger Railroad Conference in Philadelphia. Joe complimented Amtrak President Boardman for disconnecting manager compensation from injury statistics. Joe noted that while this will result in an increase in reported injuries, it will provide the FRA with the type of accurate information necessary to improve its rail safety programs. It also will help replace management’s "blame the victim" reflex with a focus on analyzing the systemic root causes of injuries.

So a good start, but not nearly enough to avoid FRSA punitive damages. As Judge Berlin recently noted when ordering punitive damages against Amtrak, the cultural change that really counts will be when employees feel free to report injuries and safety concerns without any fear of discipline or retaliation. And so far, there is no evidence that change has occurred.

Case law is beginning to clarify punitive damages under the Federal Rail Safety Act. Such damages are based on a railroad’s callous indifference toward the FRSA rights of its employees. Here is some conduct justifying the imposition of FRSA punitive damages:

  • discouraging employees from filing injury reports or raising safety concerns
  • targeting for closer scrutiny employees who report injuries or raise safety concerns
  • blaming an injured employee without addressing the underlying systemic causes of the particular injury
  • disciplining employees who report injuries without disciplining the managers who contributed to the circumstances that made the injury possible
  • attempting to influence employee medical care or otherwise interfering with medical treatment
  • disciplining employees who follow the orders or treatment plans of their treating doctors
  • tying compensation of supervisors or managers to injury statistics or goals
  • failing to have a HR manager or attorney review disciplinary actions to assure compliance with the FRSA

The leading FRSA punitive damages case to date is Anderson v. Amtrak. The Judge there discussed this type of conduct and awarded $100,000 in punitive damages, noting “At this point, Amtrak is on clear notice that these practices exist; any continuing failure to remedy them could amount to further and additional conscious disregard of its obligations.” That Judge recently denied Amtrak’s Motion For Reconsideration, noting:

Amtrak neglects that part of the reason for punitive damages is to punish those who act in conscious disregard of an employee’s federally protected rights. As to the deterrent effect of punitive damages, Amtrak . . . has offered nothing to show that its culture has changed, that employees no longer feel deterred from reporting injuries, and that managers responding to employees’ injury reports now respect those employees’ federally protected rights.

Haunting words indeed for railroads nationwide. Managers ignore them at their peril. For the full text of both decisions, go to the Punitive Damages section of the free Rail Whistleblower Library.

Strange as it sounds, a railroad manager can have a valid reason for taking disciplinary action against an employee and still be in violation of the FRSA. How? Because the employee’s protected activity in reporting an injury,raising a safety concern, or following a treating doctor’s orders was a “contributing factor” to the action.

The FRSA requires that an employee prove his or her protected activity was a “contributing factor” to the adverse discipline or discrimination.  A contributing factor is any factor which alone or in combination with other factors tends to affect in any way the outcome of the decision.  Here is OSHA’s explanation in the FRSA regulations:

In proving that protected activity [such as reporting an injury, raising a safety concern, or following a treating doctor’s orders] was a contributing factor in the adverse action, an employee need not necessarily prove that the railroad’s articulated reason was a pretext in order to prevail, because an employee alternatively can prevail by showing that the railroad’s reason, while true, is only one of the reasons for its conduct, and that another reason was the employee’s protected activity.

29 CFR Part 1982.  What does that mean in plain English?  A railroad can have a valid reason for firing an employee and still violate the FRSA if the discipline also is based in part on the employee’s protected activity of raising a safety concern, reporting an injury, or following a treating doctor’s orders.

So here’s the question: if the employee had not engaged in the protected activity, would the discipline still have occurred? If the answer is no, then the employee’s protected activity is a contributing factor and the railroad is in violation of the FRSA even if it can articulate another reason for the discipline. For more on the FRSA, go to the free Rail Whistleblower Library.

 

OSHA’s Whistleblower Office will never approve a Federal Rail Safety Act settlement that includes confidentiality. Why? Because the FRSA is supposed to remedy the chilling effects of retaliatory actions, not lock them in. And in the railroad grapevine, no retaliatory action goes unnoticed. When employees see a co-worker hammered after raising safety, injury, or fraud concerns, it exercises a profound chilling effect on their willingness to do the same. The only way to remedy that chilling effect is to publicly hold railroads accountable for their violations of the FRSA, which is why OSHA issues press releases announcing FRSA findings against railroads.

But for lawyers, insisting on or agreeing to confidentiality clauses in FRSA settlements invites charges of unethical conduct. Here’s why.

Under Rule 3.4(f) of the Model Rules of Professional Conduct, a railroad attorney cannot ethically propose a settlement agreement that prevents a FRSA complainant from giving relevant factual information to other railroad workers or OSHA. Here is a quote from the leading article on the subject:

Proposed settlement clauses that would expressly bar the plaintiff from voluntarily cooperating with parties, agencies, or lawyers who are suing or investigating the defendant clearly run afoul of Rule 3.4(f), even if they allow for disclosures in response to a subpoena. Equally important, blanket confidentiality clauses that bar any discussion of the underlying facts and make no exception for disclosures of relevant information to other litigants violate the rule as well.

Malone and Bauer, "Unethical Secret Settlements: Just Say No," Trial (Sept. 2010). Click here for a version of the Trial article, and click here for a more in-depth discussion by Prof. Jon Bauer in the Oregon Law Review. Given the FRSA’s provision for punitive damages, it is especially important for OSHA’s Whistleblower Office to have unfettered access to all information relevant to their FRSA investigations. Rail workers simply cannot be barred from sharing their FRSA complaint experiences with OSHA or with co-workers and their attorneys.

And if a FRSA complaint stems from a rail worker’s work related injury, it would be a federal crime for a railroad attorney even to attempt to prevent a FRSA complainant from voluntarily furnishing information regarding his injury that is relevant to another worker’s injury. Section 60 of the FELA makes it a federal crime for a railroad or its attorney to attempt to prohibit such sharing of information among co-workers. 45 USC 60.

Moreover, Rule 5.6(b) of the Model Rules prohibits lawyers from participating in any settlement agreement that restricts a lawyer’s right to practice. Again, to quote Malone and Bauer’s analysis:

settlements that prohibit a plaintiff lawyer from using any information obtained during the case have been found to violate the rule, because such a promise would interfere with the lawyer’s ability to provide effective representation to others suing the same defendant.

So here’s the message to rail labor attorneys representing FRSA complainants: other than the dollar amount of a settlement, just say no to confidentiality in FRSA cases. And here’s the message to railroad attorneys defending FRSA cases: don’t even think about asking for confidentiality, unless of course you enjoy being the subject of bar disciplinary committee proceedings.

For those of you interested in the Federal Rail Administration’s Final Rule on the use of cell phones and other electronic devices, here it is.  The Rule is that railroad operating employees can "not use an electronic device if that use would interfere with the employee’s or another railroad operating employee’s performance of safety-related duties." However, there is an exception for deadhead operating employees: "a railroad operating employee who is in deadhead status and not inside the cab of a controlling locomotive may use an electronic device only if the employee is not using the device in such a way that interferes with any railroad operating employee’s personal safety or performance of safety-related duties." Also, during any period of time when cell phones are not prohibited, employees are free to use their personal cell phone any way they wish, including using the camera function to document unsafe conditions on the property (assuming that does not run afoul of any applicable railroad operating rule).

 

Federal Rail Safety Act Section 20109(c)(1) prohibits railroads from "deny[ing], delay[ing] or interfer[ing] with the medical or first aid treatment of an employee who is injured during the course of employment." In the first case to interpret the meaning of (c)(1), OSHA took the position the scope of that prohibition goes beyond initial medical treatment. However, the ALJ’s post-trial decision adopted a narrower scope: "I conclude that Section 20109(c)(1)’s mandate prohibiting railroads from ‘deny[ing], delay[ing] or interfere[ing] with medical or first aid treatment of an employee who is injured during employment’ applies to the temporal period surrounding the injury."  Santiago v. Metro North at page 24. It remains to be seen if this narrower scope will prevail on appeal to the ARB or in the federal courts.

However, it is clear the scope of Section 20109(c)(2) is not so limited. Section (c)(2) mandates that railroads "may not discipline, or threaten discipline to, an employee . . . for following the orders or treatment plan of a treating physician." Thus (c)(2) explicitly prohibits railroads from disciplining an employee during the entire period of time the employee is following the orders or treatment plan of a treating doctor. And the absence in (c)(2) of any phrase qualifying that the employee must have been "injured during the course of employment" means that railroads are prohibited from disciplining any employee for following the orders or treatment plan of a treating doctor.  This means a railroad cannot use absences from work ordered by a treating doctor as a basis for attendance discipline.  And it means an employee cannot be disciplined for insubordination when he follows his doctor’s order not to travel and thus refuses to travel to a railroad medical department appointment.

Another Judge has ruled that the Railway Labor Act does not preclude Federal Rail Safety Act actions. To quote from the second post-trial ALJ FRSA decision to be handed down:

          The reach of the RLA is limited to disputes involving the interpretation or application of existing labor agreements. It does not address allegations or claims that the railroad violated federal statutes prohibiting discrimination against an employee. . . . The source of the instant claim is Sections 20109(a)(4) and 20109(c)(1) of the FRSA, which prohibit any railroad from discriminating against an employee for reporting a work injury and prohibits a railroad from denying, delaying or interfering with the medical or first aid treatment of an employee injured during the course of employment. Resolution of the question of whether Metro North discriminated against the Complainant requires interpretation and application of the FRSA and not the CBA between the parties. The present action is not preempted by the RLA. 

Anthony Santiago v. Metro North Commuter Railroad Co., Inc, 2009-FRS-00011 (September 14, 2010) at pages 14-15. For the complete decision, click here. More about this case to come.

Anthony Santiago v. Metro North Commuter Railroad Co., Inc

As of August 31, 2010, the Federal Rail Safety Act has its own set of regulations setting forth the requirements and procedures for every aspect of FRSA litigation, including the filing of complaints, OSHA investigations, appeals to ALJ de novo hearings, review by the ARB, and optional federal court jury trials. You can access the complete regulations by going to the FRSA Library and clicking on the link at the "FRSA Regulations" heading. Any comments on these new regulations must be sent to the DOL by November 1, 2010, via http://www.regulations.gov and refer to Docket No. OSHA-2008-0027.

The first two stages of grief are denial and anger. And when it comes to the Federal Rail Safety Act, railroads still are deeply mired in denial and anger. As a result, any time OSHA’s Whistleblower Office hands down a FRSA award against a railroad, the railroad reacts with angry denial and automatically appeals for a de novo trial before an administrative law judge. Well, here is compelling evidence that such reflexive appeals of FRSA awards expose railroads to economic disaster.

In October 2008 OSHA ordered Amtrak to pay $20,000 in punitive damages plus back pay to a coach cleaner in Seattle who experienced retaliation after reporting an injury. Amtrak’s denial toward the FRSA blinded it to the merits of the case, and out of anger at being ordered to pay punitive damages it reflexively appealed for a ALJ trial. The trial was held in June 2009 before ALJ Steven B. Berlin, and now ALJ Berlin has just issued a 29 page Decision and Order (the first to be issued by an ALJ after a de novo FRSA trial).

So what has Amtrak accomplished by its appeal? Let’s see. Instead of paying $20,000 in punitive damages, now it must pay $100,000. Instead of paying no compensatory damages, now it must pay $60,000. Instead of paying no attorneys fees, now it must pay for the attorney fees and trial costs generated by BOTH sets of lawyers during the trial (that’s right, Amtrak now must pay not only for its own attorneys but also for the employee’s attorneys). So as a result of its denial and anger, the railroad will end up paying over ten times the amount of the OSHA award.  Not to mention establishing a foundation for even higher punitive damage awards against Amtrak in the future.

The lesson for railroads is clear: angry denial is not a viable defense strategy. Until you take off your blinders of denial, until you let go of your anger at the FRSA’s threat to your management culture of retaliation, this pattern will be repeated again and again. Remember, the final stage of the grieving process is acceptance. The longer you stay stuck in denial and anger, the more it will cost you. And when you finally read the plain language of the FRSA’s text with an open mind, and actually stop retaliating against employees who report injuries or safety concerns, it won’t cost you a dime.

Stay tuned for more posts on the finer points of this important ground breaking Decision. For the full text of Nicole Anderson v. Amtrak, click here.

Rail labor attorneys, union reps, employees, and even OSHA Whistleblower investigators: Your search is ended!  Everything you need to know about the Federal Rail Safety Act is now in one easy place.  In response to numerous requests, I have created a web page entitled Rail Whistleblower Library. 

This is a repository for information, texts, forms, decisions, pleadings–a living Library designed to grow organically for the use of everyone interested in the FRSA. Help this important new statute fulfill its purpose by sending along any decisions, pleadings, forms, etc to charlie@gowhistleblower.com so they can be added to the appropriate section.  To receive automatic updates on breaking FRSA developments, type your email address in the subscription box at the left hand margin of this blog page.