When BNSF track inspector Brandon Fresquez refused to falsify reports of track defect repairs, he was terminated for insubordination. In another example of the transformative power of the FRSA, a federal jury and judge have ordered BNSF Railway to pay Fresquez $1.74 million, including $800,000 in emotional distress, $250,000 in punitive damages, and $696,173 in
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Fine Tuning The Expungement Remedy
By Charlie Goetsch on
Posted in Federal Rail Safety Act
When the imposition of discipline violates the Federal Rail Safety Act, it is routine for OSHA or a judge to order its expungement from the railroad’s records. But what if that runs afoul of other laws requiring the preservation of corporate records? In Brough v. BNSF Railway, the Administrative Review Board explains how…
The Burden of Proving Failure to Mitigate Is On the Railroad
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Every injured or terminated employee has a legal duty to make reasonable efforts to mitigate or minimize his or her lost wage damages. But “failure to mitigate” is an affirmative defense, and the burden of proving any such failure falls entirely on the railroad. In Brough v. BNSY Railway, the Administrative Review Board held:
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How the FRSA Can Protect Safety Absences From Discipline
By Charlie Goetsch on
Posted in Federal Rail Safety Act
It is especially important for rail workers in safety sensitive positions to know how to book off when their medical condition renders them unsafe. To quote the Chairman of the NTSB: “The public deserves alert operators. That’s not too much to ask.” Yes, but how can a rail worker protect a safety absence from…
A Miscellany of FRSA Updates
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Here are some “need to know” developments affecting Federal Rail Safety Act Section 20109 railroad whistleblower retaliation matters.
New Rules of Practice For ALJ Trials
As of June 18, 2015, a new set of Rules of Practice and Procedure will apply to the trial of whistleblower cases before U.S. DOL Administrative Law Judges. An increasing…