Every railroad will tell you its goal is "to provide safe trains that arrive on time." But when safety falls short of the slogan, often it is passengers who pay the price. The latest example comes from New Jersey Transit, where a passenger was dragged to death when train doors malfunctioned. But the law holds railroads accountable to the highest standard of care when it comes to providing for the safety of passengers. Whether it be train doors on NJ Transit, or platform gaps on LIRR, or mainline train collisions, holding railroads legally accountable for passenger injuries is the only way for the public to enforce rail safety standards.

 

Starting in March, commuter rail cars must be built with stronger front-end frames to better protect passengers during collisions. click here This is good news, but underscores the importance of avoiding collisions in the first place. How? Rail workers are the eyes and ears of safety on the tracks. If they hestitate to raise safety concerns for fear of management retaliation, we all are at risk. But two new laws protect railroad workers (FRSA) and subway workers (NTSSA) who raise safety concerns. Enlightened railroads should spread the word among their employees and welcome any and all safety "complaints." For the sake of rail safety, railroads have got to stop treating such workers as malcontents worthy of retaliation. And if workers invoke their protections under the FRSA and NTSSA, that will begin to happen.

Here’s a quick look back at some of this year’s notable developments in the rail safety world:

March: FRA bans railroad supervisors from medical examining rooms: click here

June: OSHA’s Whistleblower Office issues $300,000 in punitive damages against Metro North Railroad for violations of the Federal Rail Safety Act FRSA, setting important precedent: click here

October: Judge confirms FRSA punitive damages apply to publicly owned commuter railroads:click here

November: Judge confirms FRSA prohibits railroads from interfering with the medical treatment plan of employees’ treating doctors: click here

November: the first trial in the nation of a FRSA complaint is held in New Haven, Connecticut, against Metro North Railroad (stay tuned for the Judge’s decision in early 2010)

And looking forward to 2010, here’s hoping:

—for more rulings rejecting rail management’s bogus argument that the participation of employees in Railway Labor Act disciplinary proceedings somehow constitutes an "election of remedies" that bars them from the whistleblower protections of the FRSA;

—for judicial rulings establishing that under the FRSA, an employee’s treating doctor "trumps" over whatever a railroad manager or medical department may think or want to do;

—to increase the beneficial effect of the FRSA’s sister law, the NTSSA (which protects subway system employees who raise safety concerns) by encouraging its application on major subway systems such as New York City Transit and the Washington DC Metro.

Meanwhile, here’s wishing everyone a safe and productive new year!

In response to last summer’s fatal Metro subway crash in Washington DC, Congress now is proposing to extend federal rail safety standards to subway and light-rail lines currently “regulated” by understaffed local safety personnel wielding toothless rules. See NY Times Editorial. This would be a great step forward in ensuring the safety of the commuting public. But there is a little known law already on the books that if put to proper use will be a powerful tool to ensure subway safety.

The National Transit Systems Security Act (NTSSA) is a new whistleblower law that protects subway workers who report hazardous safety conditions. The NTSSA prohibits subways from retaliating or discriminating in any way against employees who report unsafe conditions or any fraud and waste of funds. And if the subway does retaliate, the NTSSA’s remedies include reinstatement, back pay, compensatory damages, and up to $250,000 in punitive damages.

So one way to ensure the ongoing safety of subway systems is for employees to vigorously exercise and enforce their new rights under the NTSSA. But this has yet to happen. For example, OSHA’s Region II Whistleblower Office confirms that the single largest group of subway workers in the nation, the nearly 40,000 members of TWU Local 100 who work for the MTA NYC Transit Authority, have generated a mere handful of NTSSA complaints. Given the size and history of the NYC subway and bus system, this can only mean the rank and file workers are unaware of their new rights under the NTSSA. Those workers are the eyes and ears of safety in the subway. Something must be done to raise their awareness and encourage them to speak out whenever they see a safety hazard. For more on the rights of employees under the NTSSA, go to the Rail Whistleblower Library.

Joe Coleman from Seattle asks whether union reps can be present when a worker gives a statement to a railroad claims agent. The real question is, why would a railroad worker NOT have his union rep present?

No way can there be ever be a level playing field between a claim agent and an injured worker. Think about it. A claim agent is a manager whose only job is to save the railroad money. He is a professional trained to ask leading questions that steer the worker into incriminating answers that will insulate the railroad from liability. The injured worker, on the other hand, finds himself suddenly thrust into a bewildering process with no idea how to protect his legal interests.

Always remember, you don’t have to give a statement to a claim agent. If a claim agent asks you to come in and give a statement, ask the claim agent if your union rep can be there with you. If the answer is no, that is all the proof of unfairness you need, and just walk away.

Before giving any statement, it is always best to at least consult with an experienced FELA attorney who can advise you how to protect your long term interests. But at the very least, talk to an experienced union rep who can be there to keep the claim agent honest.

So don’t be fooled by the "friendly" claim agent who just "wants to help" and, by the way, just needs to take a "short statement on the record" before he will process your medical bills and so on. He will smile and joke and take your statement, and then months or years later when you go to settle your claim, he will pull out your statement and say, "Gee, what do you want from us? You yourself stated it was just an accident that could not have been avoided. You’re lucky we even paid your medical bills."

 

Railroad Medical Departments, beware, you can no longer interfere with an injured employee’s medical treatment. Subsection (c) of the Federal Rail Safety Act prohibits a railroad from denying, delaying, or interfering with the medical treatment of an injured employee. The FRSA also prohibits a railroad from disciplining an employee for following the orders or treatment plan of his treating doctor. The railroads argue this FRSA protection only applies to an injured employee’s emergency medical treatment. But in the first decision interpreting the meaning and scope of FRSA subsection (c), Administrative Law Judge Colleen A. Geraghty has made it clear the FRSA’s

provisions protect employees from interference with medical care or the treatment plan of a treating physician during the course of treatment and recovery from a work injury. . . . Accordingly, an employer’s changing the classification of an injury occurring at the workplace to a non-occupational injury may rise to the level of "interference with medical treatment" depending on the circumstances. 

For a link to the full opinion, click Santiago v. Metro North Railroad. Metro North had reported Santiago’s on the job injury to the FRA as occupational and paid for Santiago’s medical bills accordingly. But then in the middle of his treatment, the Metro North Medical Department unilaterally reclassified Santiago’s injury as non-occupational (without amending its FRA report), thus forcing him to choose between forgoing his treating doctor’s medical treatment plan or paying for it from his own funds. The result? He now has personally paid or owes over $16,000 in medical bills. His case is going to trial next week. Stay tuned for any punitive damage award.

 

An OSHA whistleblower investigator recently asked whether railroad employees are considered to be on duty within the scope of their employement when walking over railroad property prior to the beginning of their shift or when leaving railroad property after their shift is over. Funny she asked me. The leading court decision happens to be a case I tried 20 years ago, Dolores Schneider v. National Railroad Passenger Corp.

The short answer is yes. The appellate court ruled that an "employee traversing the employer’s premises to report to or to leave the job within a reasonable time of her shift is fulfilling a function necessarily incident to employment" and thus considered to be on duty within the scope of employment.

So don’t let the railroad tell you otherwise. When a railroad worker gets injured just before or after their shift begins or ends, their injury is still covered by the Federal Employers’ Liability Act (FELA), and the railroad must report it to the FRA as an "on-duty injury" that is shielded from any adverse action by the Federal Rail Safety Act (FRSA).

 Metro North Railroad’s attempt to exempt itself from punitive damages under the Federal Rail Safety Act has failed. In a case of first impression, an ALJ has just ruled that ALL railroads–including publicly owned commuter railroads–are subject to the FRSA’s punitive damage remedy. Plus, the ALJ is requiring Metro North Railroad to go through the past 196 injuries it reported to the FRA and produce documents confirming any discipline initated against the employees who reported those injuries. Why? Because when "determining whether punitive damages are warranted . . . prior similar acts may be important in determining whether a wrongdoer’s conduct was reprehensible and thus subject to punitive damages." This is a major step forward in ensuring the protection of railroad workers who report injuries or safety concerns. To read the ALJ’s detailed and well-reasoned decision, click here, and to see OSHA’s earlier ruling regarding my four clients,click here.

Here’s a true story that should give any railroad supervisor pause. The fact is, you never know where an act of retaliation will lead. After you commit an act of retaliation, you simply can not control how it reverberates in people’s lives. And while all retaliation hurts, it can kill as well. It’s like a felony-murder: when in the course of a robbery someone gets unforseeably killed, the robber is still guilty of murder even though he never intended anyone to die.

Case in point. A notorious Metro North supervisor with a long history of abusing his authority decided to humiliate one of his electricians in front of his gang. Why? Because the worker was taking FMLA leave to be with his wife for the birth of their baby and to help her during the weeks thereafter.

The electrician complained to Metro North’s Workforce Diversity Department, who commenced an investigation. In response, the supervisor proceeded to retaliate against the worker by improperly abolishing his job and then refusing to allow him to transfer into a different district, trapping him. The public humiliation and the cumulative abuse was the last straw that broke the worker’s emotional equilibrium. He felt his choice was to return to work and "go postal" when he saw the supervisor again, or to give up his railroad career. He chose to avoid violence and resign (the law calls that a "constructive discharge" because the railroad made his work life so intolerable it forced his resignation).

The problem is, he then lost medical coverage for his wife and baby, he lost his regular income and pension, and he struggled to replace the wages and self-respect he earned in his railroad job. Metro North’s Workforce Diversity Office completed its investigation of the supervisor, and concluded the supervisor was guilty and deserving of severe discipline. But what happened? His managers refused to accept Metro North’s own ruling, and watered down the discipline so it was meaningless.

Several weeks later, the worker put a bullet in his head. A life destroyed, a productive career lost, a family devastated, a baby girl who will never know the love of her father. And all because the Railroad’s managers reflexively protect their abusive supervisors.

Of course, when sued for wrongful death and FMLA violations Metro North tried to wriggle out from its liability, but the federal judge has refused to let the Railroad off the hook. Metro North now will have to face a jury, who will decide under the Federal Employers’ Liability Act (FELA) whether the Railroad’s conduct played any part at all in causing the worker’s death. Let us all pray that, for the sake of his widow and baby girl, justice will prevail.

 

The civil penalties for discrimination just got steeper and more painful for Metro North Railroad and Long Island Railroad. Metro North and LIRR now are subject to new penalties of up to $100,000 for violations of New York State’s Human Rights Law. N.Y. Exec. Law Section 290 et seq.

New York’s law prohibits discrimination in employment based on disability, age, sex, or race. Now, for conduct occurring after July 6, 2009, Metro North and LIRR are exposed to penalties of $50,000 for such discrimination and up to $100,000 for discriminatory acts that are willful, wanton, or malicious. These civil penalties may be demanded in civil lawsuits brought by railroad employees, and apply not only to the Railroad but to individual supervisors and managers.

The New York Commissioner of Human Rights declared "this amendment to our law will provide the Division with a very powerful tool to fight discrimination." Press Release. And how. So Metro North and LIRR railroad managers beware, your decision to discriminate will cost you dearly.