Railroad Whistleblowers: Know Your Rights Under the FRSA

The Federal Railroad Safety Act (“FRSA”) was amended on August 3, 2007 to transfer authority for railroad carrier worker whistleblower protections to the Occupational Safety and Health Administration (“OSHA”).  The amendments also provided for new rights, remedies and procedures.  The FRSA was again amended on October 16, 2008 with the passage of the Rail Safety Improvement Act, which specifically prohibited discipline of employees for requesting medical treatment or for following medical treatment orders.

The FRSA covers employees of railroad carriers, as well as contractors or subcontractors of railroad carriers.  It is illegal for an employer to retaliate against a covered employee for reporting most safety or security violations to federal agencies, members of Congress, or to her own company.  It is also illegal for an employer to retaliate against a covered employee for assisting in a government or internal investigation, or for filing or participating in an FRSA proceeding.  An FRSA employer is also prohibited from retaliating against an employee for reporting hazardous safety or security conditions, reporting a work-related injury or illness, refusing to work under certain conditions, or refusing to authorize the use of any safety- or security-related equipment, track or structures.

“Retaliation” is not just termination.  An employer may retaliate against its employee in a number of different ways.  Here is a list of actions that may qualify as “adverse actions” under the FRSA:

• Firing or laying off
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denying benefits
• Failing to hire or rehire
• Intimidation
• Making threats
• Reassignment affecting promotion prospects
• Reducing pay or hours
• Disciplining an employee for requesting medical or first-aid treatment
• Disciplining an employee for following orders or a treatment plan of a treating physician
• Forcing an employee to work against medical advice

To prevail in an FRSA case, an employee must establish that he or she engaged in a protected activity and that the protected activity was a contributing factor in the unfavorable personnel action.  If a plaintiff successfully establishes that his protected activity was a contributing factor to the unfavorable personnel action, an employer may avoid liability by demonstrating by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the employee’s protected activity.

Finally, if the evidence supports your claim of retaliation, OSHA will issue a preliminary order requiring the appropriate relief to make you whole. Ordered relief may include:

• Reinstatement with the same seniority and benefits.
• Payment of backpay with interest.
• Compensatory damages, including compensation for special damages, expert witness fees and reasonable attorney’s fees.
• Punitive damages of up to $250,000.

Whether to report railroad safety concerns – and, if so, when, how and to whom –can be a very difficult decision for an employee, as blowing the whistle on an employer’s unlawful practices can be a career-ending move. However, the FRSA provides strong legal protections, and employees who raise these concerns can look to a number of resources for assistance. If you are thinking about reporting such concerns, or if you already have and are facing retaliation, contact the experienced whistleblower lawyers at Katz, Marshall & Banks, LLP for an evaluation of your whistleblower case. Information for this blog was derived from a helpful railroad whistleblower fact sheet provided by OSHA.