Yesterday, at the end of the first Federal Rail Safety Act jury trial in the nation, I asked the federal jury to send a message to every railroad in the country. An unmistakable message that singling out injured workers for discipline while ignoring management’s role will not be tolerated. An unmistakable message that rail management’s
Railroad Retaliation
Dept of Labor Elevates Status of Whistleblower Office
By Charlie Goetsch on
Posted in Federal Rail Safety Act
In an encouraging sign to whistleblowers, the Department of Labor has elevated the status of its Office of the Whistleblower Protection Program (OWPP) so it now reports directly to the Head of OSHA, Assistant Secretary Dr. David Michaels. This puts whistleblower protection on an equal footing with OSHA’s health and safety enforcement, and increases the…
FRSA Alert! FRSA Protects Non-Injury Absences From Discipline
By Charlie Goetsch on
Posted in Federal Rail Safety Act
WARNING UPDATE: see the 3rd Circuit’s decision in PATH v. U.S. DOL.
Any rail worker absence ordered by a treating doctor can no longer be used for attendance discipline purposes. That is the message of a ground-breaking decision interpreting the scope of FRSA protected medical treatment.
Subsection (c)(2) of the FRSA prohibits railroads from…
The FRSA Is Not Subject to Title VII Burden Shifting
By Charlie Goetsch on
Posted in Federal Rail Safety Act
The burden of proof applicable to a Federal Rail Safety Act whistleblower protection case is markedly different from a Title VII discrimination case. And much more favorable to the employee.
Title VII cases have a three step burden of proof: the employee establishes a prima facie case, the employer raises a non-discriminatory reason, and then…
Two Decisions Clarifying FRSA Adverse Differential Treatment
By Charlie Goetsch on
Posted in Federal Rail Safety Act
The Federal Rail Safety Act prohibits a railroad from “discriminating in any way” against an employee who engages in the protected activity of raising a safety concern or reporting an injury. Such discrimination can take many forms, but two recent decisions highlight a classic example: namely, treating a worker differently from other similarly situated workers.…
How Not To Settle FRSA Claims
By Charlie Goetsch on
Posted in Federal Rail Safety Act
No matter what a railroad may try to tell you, a Federal Rail Safety Act claim under OSHA jurisdiction cannot be settled without the express written approval of OSHA. Here’s why.
The FRSA itself states: “The rights and remedies in this section may not be waived by any agreement . . .” 49 USC 20109(h).
The Escalating Cost of FRSA Violations
By Charlie Goetsch on
Posted in Federal Rail Safety Act
The damages for violations of the Federal Rail Safety Act just keep expanding. The latest record breaker goes against the Union Pacific Railroad: $175,000 in punitive damages and $100,000 for emotional distress, all for firing a conductor who reported a minor injury.
In addition to the immediate reinstatement, lost wages, and attorney fees ordered,…
FRSA Bars Any Attorney Fee Awards To Railroads
By Charlie Goetsch on
Posted in Federal Rail Safety Act
If a railroad worker wins his Federal Rail Safety Act complaint, the railroad has to pay all his attorney fees. But if a FRSA complaint fails, the railroad cannot recover any attorney fees or costs against the worker.
Administrative Law Judge Adele H. Odegard’s decision in Vason v. Port Authority Trans Hudson (PATH) explains why:…
Naming Names In FRSA Retaliation Complaints
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Instead of naming the railroad, workers are free to name a manager as the defendant in a Federal Rail Safety Act complaint. And there are good reasons for doing so.
When a manager is singled out as illegally retaliating against workers, it is a form of public “shaming” that does not help his future career…
Judge Confirms Broad Scope of FRSA Adverse Actions
By Charlie Goetsch on
Posted in Federal Rail Safety Act
In an important decision clarifying the broad scope of adverse action under the Federal Rail Safety Act, Judge Theresa C. Timlin confirms that the mere act of filing of charges against an injured railroad employee is an unfavorable personnel action sufficient to support a FRSA violation.
The facts in Vernace v. PATH Rail are:…