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
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…
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 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.
The Federal Rail Safety Act is a “make whole remedy” statute, and a federal judge has clarified some important points regarding the range of remedies available to railroad employees who report injuries or safety hazards.
O’Neal v. Norfolk Southern Railroad Company concerned an employee who fell from a chair because the seat was not properly bolted to the frame. After he reported both the injury and the hazardous safety condition, the Railroad accused him of lying about it and fired him. The jury found the Railroad violated the FRSA and awarded O’Neal back pay, emotional distress damages, and punitive damages.
What Is A “Good Faith” Refusal?
Under subsection (a)(2) of the Federal Rail Safety Act, it is protected activity for an employee “to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety.” Now comes a Circuit Court decision clarifying what qualifies as “a refusal” to violate a FRA safety regulation.
In a case of first impression, a federal judge has applied FRSA subsection (c)(2)’s exception to the prohibition against railroads disciplining employees for following the orders of a treating physician. Stapleton v. Union Pac. R.R. Co.
The exception to (c)(2) is:
a railroad carrier’s refusal to permit an employee to return to work following medical