The “whistleblower” provisions of the Federal Rail Safety Act (FRSA) provide important protections for railroad workers against improper retaliation and discipline by their employer. Unfortunately, there is considerable confusion over when and how this law applies. In this short blog entry, we attempt to explain this law in simple terms.
The FRSA has designated certain actions of railroad workers as “protected activities.” If a railroad worker engages in these activities and is subjected to subsequent discipline, the FRSA can protect the worker.
So, what are the “protected activities?” Below is a snapshot of the FRSA protected activities:
- If an employee provides information or assists in the investigation of any violation of a federal law, rule, or regulation relating to railroad safety or security, he is engaging in a protected activity. For example, if an employee talks with an FRA inspector about a hazardous track condition, that would fall within this category.
- If an employee refuses to violate or assist in the violation of any federal law, rule, or regulation relating to railroad safety or security, he is engaging in a protected activity. For example, if an employee refuses to work in violation of the Hours of Service law he is protected.
- If an employee makes a good faith report of a hazardous safety or security condition or refuses to work when confronted by a hazardous safety or security condition, then he is within the protected category. For example, if an employee reports a defective switch or refuses to operate a defective switch, the law applies.
- A report by an employee of a work-related personal injury or work-related illness is protected. For example, if you fill out a personal injury report you immediately fall within the law’s protection.
- If an employee is following the medical orders or treatment plan of his doctor for a work-related illness or injury, then he is engaging in a protected activity under the FRSA. Importantly, this includes being off work under your doctor’s orders. It is unclear whether the same protection applies if you are following the treatment plan of a doctor for an off-duty injury or illness. There have been several conflicting rulings in this regard.
If you have engaged in one of these protected activities, and the railroad takes any adverse employment action against you, you are protected by the FRSA. The law makes it illegal for a railroad to “discharge, demote, suspend, reprimand, or in any other way discriminate against an employee” as a result of that employee engaging in a protected activity.
One of the most powerful features of the FRSA is that it places the burden on the railroad to prove that any adverse action was not related to the protected activity. At the risk of oversimplifying things, if a railroad worker can prove that he engaged in the protected activity and that the railroad subsequently took some adverse action against him, he has proved his case. The burden then shifts to the railroad to prove that they didn’t take the adverse job action because of the employee engaging in the protected activity, but for some completely different an independent reason. Another powerful feature of the FRSA is that the railroad is deemed to have violated the act if the adverse action was related “in whole or in part” to the protected activity.
So, how does this play out in real life. Here is an example. An employee suffers an on-the-job injury. The worker fills out an accident report. The railroad charges the worker with multiple rule violations arising out of the accident. This is covered by the FRSA. The burden is on the railroad to prove that the charges of rule violation are unrelated to the report of personal injury. There are probably some cases where the railroad can do this. If an employee gets off moving equipment at 10 mph and sprains his ankle, the railroad can make a pretty good case that they are charging him for breaking multiple rules instead of retaliating against him for getting hurt. In my experience, such a clear-cut case is pretty rare. More typically, when a railroad worker gets injured, the railroad will charge him with some vague rule about “always taking the safe course of action” or “don’t use excessive force” or “an employee will always be alert and attentive.” There dozens of other examples of such contrived alleged rule violations. In these cases, in my opinion, the railroad worker will have a winning FRSA case.
The remedies available to a worker who has been retaliated against are impressive. Lost wages. Compensatory damages including mental anguish. Reinstatement. Removal of discipline from personnel record. Punitive damages up to $250,000. And, my favorite part, under the FRSA, if we win, the railroad has to pay my attorney’s fees.
I hope this information is helpful. Now, a disclaimer. I know all of you have seen shows on TV where they show some crazy stunts and then put up a statement on the screen that says “These stunts were performed by professionals. DO NOT TRY THIS AT HOME.” Well, the same sort of disclaimer applies to claims under the FRSA. There are small details that can make a huge difference between winning and losing an FRSA claim. I would advise anyone who thinks they may have an FRSA claim to contact their designated legal counsel as soon as possible.
Below are some links to sites where you can get additional information concerning the Federal Rail Safety Act (FRSA):