Need more proof that retaliation doesn’t pay? Check out this scenario. Workers raise safety concerns with their carrier and OSHA. Carrier files a defamation lawsuit against the workers. Workers file Whistleblower complaint with OSHA. OSHA investigation finds lawsuit was in retaliation for the workers’ protected activity, and PRESTO! the carrier has to pay $7.8
Railroad OSHA Whistleblower
Railroads Beware! Refusal to Cooperate Risks Devastating Adverse Inference
Q: What is the quickest way for a railroad to end up with a punitive damages Order against it?
A: Refuse to cooperate with an OSHA Federal Railroad Safety Act investigation.
Some railroads have decided to play cute with OSHA by refusing to produce documents on the ground that the FRSA does not give OSHA…
Whistleblowers, Your Time Has Come!
Looks like the Federal Railroad Safety Act is just the beginning of a new wave of whistleblower protection statutes. The combination of a whistleblower friendly Obama Administration and the worst breakdown of financial regulation in decades is sure to result in a major expansion of whistleblower protection laws, and the legal press is taking notice.…
NJ Transit Learns the High Cost of Retaliation
Here’s stark confirmation that the cost of retaliation is punitive damages and broken management careers.
A jury in Newark, New Jersey, just found that the top manager in the NJ Transit Police Department, Chief Joseph Bober, retaliated against female officer Theresa Frizalone after she complained about discrimination. The jury awarded her $1.5 million in…
FRSA’s Sharp Teeth Starting To Bite Railroads
Talk about leveling the playing field. OSHA’s FRSA Whistleblowers have sent another powerful message to rail management: sorry guys, but the days of business as usual are officially over. Supervisors are no longer free to retaliate at will against employees who raise safety concerns.
It all started when a Union Pacific Railroad Company welder performing…
FRA Gives CSX Last Chance to Stop Intimidation and Retaliation
Some people just don’t get it. CSX Transportation managers definitely fall into that group. In a lengthy Investigative Report released in March of 2008, the Federal Railroad Administration put CSX on notice that its management culture of harassment and intimidation intended to dissuade employees from reporting injuries had to stop. In response, CSXT made …
The Real Meaning of Election of Remedies Under the FRSA
The coalition of unions on Metro-North Railroad, the Metro-North Labor Council, recently met with the top administrators and whistleblower investigators from OSHA’s Regions 1 and Region 2. Every craft on the Railroad was represented by at least one rail labor official. The spokesman for OSHA was Region 2 Supervisory Investigator Michael Mabee. It was…
New FRSA Amendment Protecting Medical Treatment Alters the Balance of Power
The FRSA (Federal Railroad Safety Act, 49 USC 20109) just keeps getting better and better. The FRSA is now amended to provide that:
A railroad may not deny, delay, or interfere with the medical treatment of an employee who is injured during the course of employment. In particular, a railroad may not discipline or threaten to discipline an employee for following the orders or treatment plan of a treating physician. (The full text of this amendment is available after the jump).
This is a fundamental shift in the balance of power between rail management and rail labor. Think about it. Up to now, whenever an employee reports a FELA on-the-job injury, railroads like Metro North, LIRR, New Jersey Transit, Massachusetts Bay Commuter Railroad, and Amtrak order the injured employee to travel long distances to the railroad’s medical facility, even if such travel violates the treatment plan of the employee’s treating doctors. Once there, the employee is given a perfunctory lookover by a non-physician and sent back home. This is a form of harassment designed to discourage employees from reporting injuries in the first place. And if the employee follows his doctor’s orders and stays home, the railroad charges the employee with insubordination and disciplines him, up to and including firing.
Here’s a recent example. True story, I’m not making this up. An injured employee in Connecticut was ordered to report immediately to the Metro North medical facility in Grand Central Terminal. His treating doctor faxed down a note confirming that his patient required three days of bed rest. Metro North refused to accept the note because, and I quote, "It doesn’t say that you can’t travel on a train" (apparently Metro North now allows beds in its commuter trains). Metro North told the employee he is not excused from the appointment and "You will be disciplined if up don’t show up."
Well, railroads can no longer play that game. The FRSA now prohibits a railroad from disciplining an employee for following the orders or treatment plan of his treating doctor. So when an employee has a note from his doctor stating he can not travel, the railroad can not force him to travel to its medical facility. Or if the treating doctor says no light duty, the railroad can not force the employee to work light duty. Or if the treating doctor says his patient needs more treatment before returning to work, the railroad can not force him back to work.
Another form of abuse is when railroads routinely "deny, delay, and interfere with an injured employee’s medical treatment" by arbitrarily declaring his on-the-job injury "non-occupational." This means the railroad will not pay for the medical treatment prescribed by the employee’s treating doctor. This forces the employee to try to have his regular medical insurance pay for his treatment, but such insurance is not supposed to cover on-the-job injury medical expenses. Many medical insurance plans limit the doctors you can see, and all require various out-of-pocket co-payments. As a result, this inevitably denies, delays, or interferes with the employee’s medical treatment. And the railroad improperly evades payment of the medical expenses by placing it on the backs of the insurance company and the employee.
Metro North Railroad is notorious for this abuse, and in fact the Metro North Labor Council has been investigating this arguably fraudulent conduct by the Railroad for some time. Now, railroads like Metro North will be sued under the FRSA whenever they declare an on-the-job FELA injury to be "non-occupational," with the prospect of punitive damages up to $250,000 for each occurrence.
There is more to this powerful amendment to the FRSA (keep tuned, details to follow). But one thing is clear: in the eternal struggle between rail labor and management, the balance of power has now shifted over to labor’s side when it comes to controlling the course of an employee’s medical treatment. Start spreading the word so labor can enforce its new won rights to the fullest extent allowed by law. …
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The Inside Story on the FRSA’s First Punitive Damages Order
Last month, the first reported Order imposing punitive damages against a railroad for violating the FRSA anti-retaliation law came to light. It concerned retaliatory conduct by Amtrak in Seattle, but the OSHA Whistleblower Office Press Release announcing the Order provided few details about what actually happened.
Well, my curiosity was piqued. I managed to get…
Railroad Workers Gain New Protection Against Retaliation For Injuries
As the saying goes, knowledge is power. Here’s an amazing new law that every rail worker should know about. The Federal Railroad Safety Act (FRSA), 29 U.S.C. Section 20109, hands employees a shield and a sword to fight back against rail managers who heretofore have retaliated against workers with impunity.
The FRSA prohibits retaliation…