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
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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…
A $1.74 million FRSA Judgment
By Charlie Goetsch on
Posted in Federal Rail Safety Act
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…
Circuit Court Rejects “Honestly Held Belief” Defense
By Charlie Goetsch on
Posted in Federal Rail Safety Act
The 8th Circuit Court of Appeals confirms that a railroad can violate the FRSA even if it honestly believes an employee violated a rule. In Blackorby II, the employee was disciplined for violating BNSF’s rule requiring the “immediate” reporting of work-related injuries. But reporting a work-related injury is protected activity under FRSA Section 20109, and…
What Is A Good Faith Belief?
By Charlie Goetsch on
Posted in Federal Rail Safety Act
We all know that “reporting in good faith a hazardous safety condition” is protected activity under Section 20109 of the FRSA. But what does “good faith” mean? Is it just the employee’s subjective belief, or must it also be objectively reasonable?
The cases are tending toward requiring both, and March v. Metro North Railroad…
When Failing to Comply With a Direct Order Is OK
By Charlie Goetsch on
Posted in Federal Rail Safety Act
When a BNSF employee reports an on-the-job injury, the Railroad orders the employee to disclose medical information to a medical case manager. But when an employee reports a non-work related injury, the Railroad leaves them alone. BNSF employee Travis Klinger reported a work injury and was ordered to contact such a medical manager. When he declined to do so, he was suspended for “failure to comply with a direct order.” The Administrative Law Judge reversed that discipline and ordered BNSF to pay $100,000 in punitive damages. Klinger v. BNSF Railway.
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