The Source for Railroad Injuries & Whistleblower Protection
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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The anti-retaliation provisions of Federal Rail Safety Act Section 20109 are indeed powerful, so powerful they cannot be waived by any disciplinary waiver or “plea bargain.” FRSA subsection (h) reads: “The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.” And In Montes v. …
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 can a $13,000 FELA injury turn into a $3.2 million Judgment against a railroad? Answer: When the railroad violates the Federal Rail Safety Act. Wooten v. BNSF Railway is yet another demonstration of the transformative power of Section 20109’s whistleblower protections.
When Zachary Wooten reported a wrist injury, BNSF accused him of dishonesty…
Another Circuit Court has corrected the 8th Circuit’s misuse of the term “intentional retaliation” in FRSA litigation. In Frost v. BNSF Railway Company, the 9th Circuit soundly rejects the suggestion in Kuduk v. BNSF that Section 20109 requires proof of discriminatory animus separate from a showing that the employee’s protected activity was a contributing…
The data is in. Since FY 2014, the number of OSHA whistleblower investigators shrunk by 25% while the number of complaints ballooned by 30%. In FY 2018 alone, 1,137 private statutory retaliation complaints were filed, the majority by railroad workers under the Federal Rail Safety Act, followed by long-haul truckers under the STAA. Of…
The Administrative Review Board provides further proof of the erroneous use of the phrase “intentional retaliation” in the 8th Circuit’s Kuduk decision. In Riley v. Dakota, Minnesota & Eastern Railroad, the ARB spells out why “intentional retaliation” simply does not apply to the FRSA’s contributing factor standard:
Continue Reading Further Correcting Kuduk’s Mischief
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.Continue Reading FRSA Remedies and Attorney Fees
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.Continue Reading More on FRSA “Good Faith” and “Intentional Retaliation”
What is Adverse Action?
The question arises, in order to qualify as an “adverse action” under the Federal Rail Safety Act, does a railroad’s investigation into an employee’s actions have to result in actual discipline? What if the charge is eventually dropped? No harm no foul? A recent district court decision clarifies the matter:Continue Reading Some Recent FRSA Developments