Train Law Blog

OSHA Hammers CSX Transportation For Outrageous FRSA Violation

Charlie Goetsch — Mon, 23 Apr 2012 06:08:22 -0500

In an important ruling underscoring OSHA's commitment to protect rail workers who file Federal Rail Safety Act complaints, OSHA has hit the CSX railroad with the highest award for emotional distress damages yet.

After CSX fired dispatcher Robin Young in connection with a near miss incident, on March 2, 2010, he filed a FRSA complaint with OSHA alleging his termination was in retaliation for having raised safety issues during the disciplinary proceeding. Meanwhile, Young exercised his seniority rights to return to work as a track maintenance employee. CSX's Legal and Labor Relations Departments approved his return as a trackman, and on March 17th he worked a full shift in the Albany New York area.

However, on March 16th CSX's corporate secretary’s office had received a copy of his OSHA complaint, and after his shift ended on March 17th CSX called Young and told him he was terminated as a trackman. The next day Young amended his FRSA complaint to allege the March 17th termination was in retaliation for his having filed a FRSA complaint.

OSHA's investigation resulted in some disturbing findings regarding the conduct of CSX's Director of Labor Relations Noel Nihoul. OSHA noted that prior to receiving the FRSA complaint, CSX's Legal and Labor Relations Departments had green lighted Young's reinstatement as a trackman. In the words of OSHA:

Yet, within one day of the corporate secretary's office receiving notification of the FRSA retaliation complaint, Mr. Nihoul directed the termination of Young despite the fact he had already returned to work and Mr. Nihoul's department had approved that return to work after obtaining legal advice that Young's return to work was permissible under the CBA. Mr. Nihoul worked in the corporate office and is responsible for enforcing corporate polices. The decision maker was not a low level manager working in a remote location and possibly not familiar with standard policy. Mr. Nihoul's outrageous behavior and callous disregard for the rights of its employees warrants punitive damages. CSX's conduct in retaliation against an employee for filing a FRSA complaint with OSHA exhibited reckless disregard for the law and complete indifference to Young's rights and the rights of CSX's other employees. Discharging an employee for claiming violations of FRSA functions to chill employees from exercising their most basic rights under FRSA.

Damning language indeed that places CSX's dealings with its employees in a highly questionable light. The BMWE union persuaded a Railway Labor Act Public Law Board arbitrator to order Young reinstated as a trackman with all back wages and seniority intact, but that was not enough to remedy the FRSA violation. So OSHA ordered CSX to pay $80,000 in emotional distress damages, $100,000 in punitive damages, and another $6,081 in make whole remedies (including orthodontic fees, late mortgage payment fees, and bankruptcy attorney fees). For the complete text of OSHA's Findings and Order in Young v. CSX, click here.

The take away is that OSHA will be relentlessly vigilant in protecting workers who file FRSA complaints. Railroads better think twice, or three times, before taking adverse action against a worker who has filed a FRSA complaint. Because even if the underlying FRSA complaint lacks merit, the mere act of filing a complaint is a protected activity that shields the worker from any subsequent retaliatory conduct by rail management.

More FRSA Developments

Charlie Goetsch — Fri, 30 Mar 2012 05:46:53 -0500

Important developments in the Federal Rail Safety Act just keep coming. Here are a couple.

OSHA has issued another punitive damages award against Metro North Railroad, this time for harassing an injured employee by interfering with his medical treatment and recovery. The Finding in Cortese v. Metro North Railroad is especially notable because it recognizes that (a)(4) gives OSHA jurisdiction to remedy a (c)(1) interference with medical treatment. In other words, interference with an injured worker's medical treatment is just another form of discriminatory adverse action that can be remedied under (a)(4). So Cortese is a sign OSHA has found a way to finesse any questions regarding the direct enforceability of (c)(1). From now on, any violations of (c)(1) can be remedied under the aegis of (a)(4). For the full text of OSHA's Finding, click here.

Here is a quote from OSHA's Press Release:

“Metro-North has exhibited an unacceptable pattern of penalizing workers who report injuries, interfering with their medical treatment and forcing them to work in violation of medical instruction,” said Robert Kulick, OSHA’s regional administrator in New York. “The whistleblower provisions of the Federal Railroad Safety Act were designed to prevent such behavior toward workers. We will continue to order corrective action whenever we identify this type of discrimination and intimidation.”

Also, for an interview regarding the significance of the "million dollar message" sent by the first FRSA punitive damages jury verdict, go to Virginia and North Carolina personal injury attorney Richard Shapiro's blog at InjuryBoard.

Two Major New Landmarks Dominate FRSA Landscape

Charlie Goetsch — Tue, 27 Mar 2012 06:10:18 -0500

Two new landmarks have appeared in the Federal Rail Safety Act landscape, one erected by a federal court jury and the other by OSHA's top policy makers. Last week's $1 million punitive damages jury award for my client is indeed historic, but should not overshadow a recent seminal Memo by OSHA of equal importance.

The Memo is by Deputy Assistant Secretary Richard E. Fairfax, the second in command at OSHA who reports directly to Dr. Michaels. It is addressed to all OSHA Regional Administrators and Whistleblower program managers. It is a remarkable document that is required reading for any one concerned with the FRSA.

The Fairfax Memo begins by confirming the link between public safety and the reporting of injuries:

If employees do not feel free to report injuries, the employer's entire work force is put at risk. Employers do not learn of and correct dangerous conditions that have resulted in injuries, and ensuring that employees can report injuries without fear of retaliation is therefore crucial to protecting worker safety and health.

The Fairfax Memo "is intended to provide guidance to whistleblower investigative staff on several practices that can discourage employee reports of injuries and violate" the FRSA. It goes on to spell out "several practices that could discourage reporting and could constitute unlawful discrimination" in violation of the FRSA:

1. OSHA has received reports of employers who have a policy of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury. OSHA views discipline imposed under such a policy against an employee who reports and injury as a direct violation of FRSA.

2. In another situation, an employee who reports an injury is disciplined, and the stated reason is that the employee has violated an employer rule about the time or manner for reporting injuries. Because the act of reporting the injury directly results in discipline, there is a clear potential for violating FRSA. An employer's rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all.

3. In a third situation, an employee reports an injury, and the employer imposes discipline on the ground that the injury resulted from the violation of a safety rule by the employee. Several circumstances are relevant to determine if an employer is using a work rule as a pretext for discrimination against a worker who reports an injury. Does the employer monitor for compliance with the work rule in the absence of an injury? Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury? Vague rules, such as a requirement that employees "work carefully," may be manipulated and used as a pretext for unlawful discrimination. Where such general rules are involved, the investigation must include an especially careful examination of whether and how the employer applies the rule in situations that do not involve an employee injury. Enforcing a rule more stringently against injured employees than noninjured employees may suggest that the rule is a pretext for discrimination against an injured employee in violation of FRSA.

Thus the Fairfax Memo is a field manual for identifying the most common forms of discrimination against injured employees that violate the FRSA. For the complete text of the Fairfax Memo, click here.

Taken together, what is the meaning of these two major new FRSA landmarks?

For generations, railroad managers were free to play a private game stacked in their favor. When it came to disciplining workers who reported injuries, managers simply filed the charges and then formed a flying wedge that trampled the employee and his hapless union rep and ground them into the dirt. No outside party was allowed to interfere or intervene in this private ritual of abuse. But these two new landmarks confirm those days are over.

Now, thanks to the FRSA, a legion of OSHA investigators have infiltrated the playing field and are blowing the whistle on managers, trying to hold them accountable for their retaliatory conduct. And true to form, the managers have done their best to ignore those OSHA investigators, treating their Findings as mere nuisances to be reflexively appealed.

But now an amazing thing has happened. Because the FRSA allows employees to subject railroads to federal court jury trials, for the first time the private gates have opened and the public itself has flooded into the playing field, surrounding the managers. For the first time, the sunshine of jury trials is publicly exposing the abusive conduct of rail managers. And for the first time, rail managers are being subjected to the withering stare of citizens who have the power to express the outrage and disgust of the community by awarding punitive damages.

And jurors truly are disgusted by what they see. Disgusted by the smug arrogance of railroad managers who believe it is their inherent right to abuse injured workers with impunity. Disgusted by the recklessly unsafe culture of retaliation rail management hides behind the window dressings of safety. OSHA sees it clearly now, as evidenced by the Fairfax Memo. And jurors see it clearly as well, as evidenced by the million dollar message in the first FRSA jury verdict. A fundamental shift in power has occurred. The game has changed, and now managers who remain blinded by arrogance will be the ones trampled and ground into the dirt.

First FRSA Jury Awards $1 Million in Punitive Damages!

Charlie Goetsch — Fri, 23 Mar 2012 06:50:03 -0500

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 unsafe culture of retaliation must stop.

And send a message it did. The jury responded with a historic punitive damages award of $1 million, in a case where my client's only economic loss was $1,428 (for his lost wages from the 7 days he spent at the trial). More on the lessons of this historic verdict later, but the message is clear: juries hate railroads that discipline injured workers, and maximum punitive damages will be routine in every FRSA case, no matter how small the economic loss.

For an article on this verdict, click here. For more information on this powerful new law that is changing the landscape of rail labor relations, go to the FRSA Library.(and for automatic notice of breaking developments, enter your email address in the free subscription box to the left).

FRSA Protects Injured Workers From Medical Treatment Interference

Charlie Goetsch — Mon, 12 Mar 2012 20:14:04 -0500

In a major decision clarifying the scope of the FRSA, OSHA confirms that a railroad's denial, delay, or interference with an injured employee's medical treatment constitutes adverse action recoverable under FRSA Section (a)(4). Section (a)(4) protects employees from adverse action due to the reporting of a work-related injury, and OSHA now recognizes that a railroad's interference with an injured employee's medical treatment is a form of impermissible adverse action prohibited by Section (a)(4).

Vinny Ruffolo is a laborer at Metro North Railroad's Harmon Diesel Shop. After he reported a cut finger injury, Metro North interfered with his medical treatment, assigned him duties contrary to his medical restrictions, and harassed him for following the orders of his treating doctor. Despite the fact no discipline was involved, OSHA nevertheless ruled Metro North violated Section (a)(4)'s prohibition against adverse action related to the reporting of an injury. The words of OSHA are worth quoting:

The evidence suggests that Metro North's actions were motivated, at least in part, by a desire to minimize the injury because by doing so, Metro North could avoid reporting the injury and any lost time to the Federal Rail Administration (FRA). . . . Metro North's actions here send the message to this employee and all other employees that they are better off not reporting injuries at all. Such actions, if they successfully dissuade an employee from reporting an injury, result in the skewing of information provided to the FRA and potentially jeopardize employee safety.

OSHA went on to note that such conduct demonstrates "a reckless disregard for the rights of its employees to report a work-place injury," and "demonstrates this was not a random act but rather an extension of an entrenched culture to retaliate against employees who report work-related injuries. . . . the Facilities Director's deliberate actions were intended to chill the workforce and dissuade employees from reporting future accidents, and calls for the imposition of punitive damages."

OSHA's Press Release states: “Metro-North’s actions in this case are unacceptable and send a message of intimidation to its workforce,” said Robert Kulick, OSHA’s regional administrator in New York. “Railroad employees must be free to report injuries without fear that their employers will harass them, ignore medical instructions or force them to work under conditions that could impair the healing process or cause more harm.”

Bottom line? Even in the absence of any disciplinary action, the FRSA protects employees who report work-related injuries from interference with their medical treatment. For the full OSHA Decision in Ruffolo v. Metro North Railroad, click here.

Dept of Labor Elevates Status of Whistleblower Office

Charlie Goetsch — Thu, 01 Mar 2012 22:30:40 -0500

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 OWPP's access to the resources it needs to accomplish its mission. It means the new Director of the OWPP, Sandra Dillion, now has the ear of Dr. Michaels and the Solicitor of Labor, giving her the ability to quickly resolve issues that previously would languish in lower level limbo. And she will preside over one of the few federal programs set to grow, with President Obama calling for a 39% increase in the OWPP's budget and the hiring of 37 new whistleblower investigators.

By giving whistleblower protection a priority, the DOL is moving forward with its commitment to strengthen the voice of employees in the workplace. And it means more support for railroad workers who stand up and blow the whistle on rail management's culture of retaliation. For the DOL Press Release announcing this restructuring, click here.

FRSA Alert! FRSA Protects Non-Injury Absences From Discipline

Charlie Goetsch — Thu, 16 Feb 2012 10:19:58 -0500

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 disciplining employees for following the orders or treatment plan of their treating physician. In Bala v. PATH, ALJ Theresa C. Timlin explains why the FRSA protects ALL employees--not just on the job injured employees--from such discipline.

When PATH signal repairmen Chris Bala's family physician ordered him not to work in order to recover from a non-work related medical condition that rendered him unfit for duty, he duly notified the Railroad and followed his doctor's medical treatment plan by staying home. However, that absence triggered a charge he was in violation of PATH's attendance policy, and, after the usual kangaroo court, Bala was found guilty and suspended for three days.

OSHA found PATH violated the FRSA, PATH objected, and a full trial was held before ALJ Timlin. Her Decision is the first to apply Section (c)(2), and is remarkable for its fidelity to the letter and spirit of the FRSA..

Judge Timlin begins by stressing the purpose of the FRSA is "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." She points out that "in enacting the FRSA, Congress stated that 'employees should not be forced to choose between their lives and their livelihoods.'"

Applying the cardinal principals of statutory interpretation to subsection (c)(2), she notes that its language "plainly and unambiguously prohibits railroads from suspending an employee for calling out sick pursuant to orders from a treating physician that the employee is not fit for duty."

She goes on to reject the argument that the language of (c)(1) somehow qualifies or limits the scope of (c)(2): "when Congress included the phrase 'during the course of employment' with regard to emergency medical care in subsection (c)(1), but omitted that phrase with regard to treatment plans in subsection (c)(2), it acted purposely, and did not intend to limit the protection of (c)(2) only to treatment plans involving on-the-job injuries."

Her conclusion is worth quoting at length:

After reviewing the FRSA's text and purpose, I find it clear that Section 20109(c)(2) exists not only to encourage employees suffering on-the-job injuries to report unsafe conditions to their superiors without fear of reprisal, but also to discourage sick or injured workers from returning to duty while their impairment poses a threat to the safety of railroad passengers and fellow employees. I thus find that Section 20109(c)(2) applies equally to treatment plans arising out of on-duty and off-duty injuries.

And in fact all railroads have mandatory safety rules similar to this one on Metro North Railroad: "Be alert and attentive when performing duties and be properly rested when reporting for duty." That is because a rail worker who is not alert and attentive or is otherwise unable to perform the duties of his job is jeopardizing the safety of himself, his fellow workers, and the public. Such an employee constitutes a hazardous safety condition, and for such an employee to report to work would be a violation of the railroad's own safety rules.

So when a worker notifies the railroad he is in such a condition, he is protected from discipline under subsection (b)(1)(A) because he is notifying the railroad of "a hazardous safety condition." And when he follows the medical treatment plan of his treating physician and stays home, he also is protected from discipline under subsection (c)(2).

Bottom line is, if an employee notifies the railroad that his treating doctor has ordered him not to work, the railroad cannot use that absence for disciplinary purposes. And it doesn't matter is the absence is due to sickness, an off duty injury, or an on duty injury. From now on, railroads who continue to discipline employees for such absences will pay the price in FRSA damages and attorney fees. For full Decision, click here.

The FRSA Is Not Subject to Title VII Burden Shifting

Charlie Goetsch — Sun, 12 Feb 2012 17:18:42 -0500

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 the employee has to prove the stated reason was a pretext. All by a preponderance of the evidence standard.

But the FRSA has the same burden of proof as AIR21, the whistleblower statute that covers airline employees. And only two steps apply: (1) if the railroad worker proves by a preponderance of the evidence that his protected activity was a "contributing factor" in the railroad's adverse action, then (2) the burden shifts to the railroad to prove by "clear and convincing evidence" that it would have taken the same adverse action even in the absence of the worker's protected activity. And "clear and convincing evidence" means something is reasonably certain, a much higher standard of proof than a mere "more likely than not" preponderance of the evidence.

And under the FRSA's "contributing factor" standard, an employee does not have to prove that the railroad's stated reason is a pretext. In the words of OSHA, a railroad worker "need not necessarily prove that the railroad's articulated reason was a pretext in order to prevail, because the worker alternatively can prevail by showing that the railroad's reason, while true, is only one of the reasons for its conduct and that another reason was the worker's protected activity." OSHA's Final Interim Rule Summary of Section 1982.104, 29 CFR 1982.104. That is because a "contributing factor" is "any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision."

So don't let anyone confuse the apples of Title VII with the oranges of FRSA.

Two Decisions Clarifying FRSA Adverse Differential Treatment

Charlie Goetsch — Tue, 31 Jan 2012 09:22:00 -0500

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.

In Gunderson & Peterson v. BNSF Railway Co., AL J Paul C. Johnson, Jr. confirms that the FRSA prohibits a railroad from singling out for discipline an employee who engages in protected activity while ignoring similarly situated employees. Peterson was fired for accessing certain personal information relating to other employees, and Gunderson was fired for using "rough language" while talking to a supervisor. But Judge Johnson denied summary judgment because the Railroad "presented no evidence that it has terminated other employees for similar behavior." As such, the Railroad could not prove by "clear and convincing evidence" that it would have taken the same action even in the absence of the protected activity.

The facts of Infermo v. New Jersey Transit Rail Operations, Inc. are indeed classic. Infermo and his co-worker Gelmi are walking on ballast along the right of way. Both stumble in a washed out area, but only Infermo falls and is injured. He reports the injury, and is disciplined for violating the railroad's absurdly vague safety rules ("Employees must be aware of their surroundings . . . Employees must be alert and watch where they are walking"). His co-worker is not disciplined, nor are the railroad managers responsible for allowing the hazardous condition to exist.

The Railroad argued it legitimately disciplined Infermo because he did in fact violate those safety rules, but in denying summary judgment Senior U.S. District Judge Stanley Chesler explained why a FRSA jury would be entitled to reject that articulated reason:

his work partner [Gelmi] was walking along the same allegedly hazardous path and would have presumably, according to NJT's rationale for disciplining Infermo, failed to avoid the same tripping hazards. Indeed, Gelmi testified that he, too, lost his footing on the right of way but, unlike Infermo, was able to steady himself and avoid falling. Gelmi was not charged with any safety violations, nor required to attend any safety counseling. Infermo points out that the only difference between his conduct and Gelmi's conduct on the day in question is that Infermo suffered an injury whereas Gelmi did not. This evidence, the Court finds, casts doubt on NJT's articulated legitimate reason and would permit a jury to disbelieve it.

So the message is clear: unless a railroad disciplines everyone whose actions or inaction contributed to the injury incident (including managers), it can not single out the injured worker for discipline without violating the FRSA and inviting a jury to impose punitive damages.

Call me crazy, but there is an alternative: don't discipline anyone. Instead, take all the energy spent on disciplining the injured worker and redirect it toward identifying and correcting the causes of the hazardous condition so it will not injure again. That would truly promote safety while completely avoiding hefty FRSA damages. Just a thought.

Announcing A New Rail Safety Award

Charlie Goetsch — Thu, 26 Jan 2012 14:29:48 -0500

Every year since 1913, the railroads with the lowest number of injuries reported to the FRA have been awarded the E.H. Harriman Memorial Safety Awards. No more. The rail industry has announced that after the awards ceremony in May 2012, the E.H.Harriman Awards will be discontinued.

But when it comes to rail safety, it would be a real shame not to give credit where credit is due. Fortunately, the criteria for a new rail safety award is now at hand. And so trainlawblog is pleased to announce the first annual P.U. Harassment Award. The prestigious P.U. Harassment Award is based on data compiled by OSHA's Office of Whistleblower Protection (and obtained through the Freedom of Information Act), and honors the railroad that has generated the highest number of Federal Rail Safety Act retaliation merit findings.

In addition to highlighting the callous disregard of railroads for the rights of its employees, the P.U. Harassment Award celebrates rail management's relentless determination to suppress the reporting of injuries and safety concerns through the imaginative use of retaliatory discipline and discrimination.

So, without further adieu, trainlawblog hereby announces that the First Annual P.U. Harassment Award goes to the Union Pacific Railroad Company, in recognition of the nine Merit Findings its conduct has garnered to date. But the Norfolk Southern Railway is right behind with eight Merit Findings to date, and thus deserves Honorable Mention. And by this time next year the BNSF Railway Company will have a real chance to claim the Award, because it has well over 100 FRSA complaints pending decision, the most of any railroad in the nation!

So, congratulations to you winners! And to all you runner up railroads, remember that 2012 provides another 365 days of opportunity for you to demonstrate just how recklessly retaliatory you can be!

How Not To Settle FRSA Claims

Charlie Goetsch — Mon, 16 Jan 2012 21:03:36 -0500

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). And the regulations confirm that during OSHA's investigative phase, "the case may be settled if the Assistant Secretary, the complainant, and the respondent agree to a settlement." 29 CFR 1982.111(d)(1).

So what happens when there is a FELA General Release containing broad and unlimited language referring to the release of any and all matters? Can the railroad turn around and claim such a FELA Release waives any FRSA claims as well?

Short answer: no way. OSHA spells out what would happen:

If the parties do not submit their agreement to OSHA or if OSHA does not approve the agreement signed, OSHA must deny the withdrawal, inform the parties that the investigation will proceed, and issue Secretary's Findings on the merits of the case. The findings must include the statement that the parties reached a settlement that was either not submitted for review by OSHA or not approved by OSHA.

Whistleblower Investigations Manual at Chapter Six, Section IV.D.4. So unless a FELA General Release specifically references a FRSA claim and has been approved by OSHA, it can not withdraw or bar any FRSA claim.

So what's a prudent attorney to do when a FELA Release has not been approved by OSHA? The best practice for all sides is either to exclude the FRSA entirely in body of the Release, or attach a rider to the Release along these lines:

Federal Rail Safety Act claims under the jurisdiction of OSHA’s Office of Whistleblower Protection cannot be withdrawn or settled without the express written approval of OSHA, and the parties hereby acknowledge that the attached General Release has not been submitted to OSHA and does not purport to waive any rights or remedies under the Federal Rail Safety Act.

The Escalating Cost of FRSA Violations

Charlie Goetsch — Thu, 22 Dec 2011 17:10:11 -0500

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, this case is notable for the $100,000 in damages to compensate for the conductor's "distress, humiliation, depression, mental anguish, lessened self esteem, anxiety and embarrassment" resulting from the RR's actions. And also for the $175,00 in punitive damages, based on: the economic harm suffered by the employee; the fact the UP managers knew of the FRSA's prohibition against retaliation yet went ahead and retaliated anyway; and the UP's well established pattern of retaliation against employees who exercise their FRSA right to report work-related injuries.

So, hats off to Conductor Annen and her attorney for standing up and using the FRSA to expose the rottenness at the core of UP's management culture. For the full text of the Annen v. UP RR Merit Finding, click here.

FRSA Bars Any Attorney Fee Awards To Railroads

Charlie Goetsch — Sat, 12 Nov 2011 16:29:42 -0500

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: unlike the NTSSA, the FRSA does not provide for any award of attorney fees on behalf of a railroad. So don't let a railroad threaten you with the prospect of paying their attorney fees: it can never happen, even if your FRSA complaint fails.

Naming Names In FRSA Retaliation Complaints

Charlie Goetsch — Sat, 12 Nov 2011 16:22:52 -0500

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 prospects. It also raises the unsettling potential for that manager to be held personally liable for any economic damages, thus making him think twice before retaliating again. And it creates an official record that can be used as a basis for a FRA disqualification of that manager from working in the railroad industry. For an explanation of how to disqualify such managers, click here.

So managers who retaliate should be prepared to suffer all the negative consequences of being personally named as the defendant in a FRSA complaint.

Judge Confirms Broad Scope of FRSA Adverse Actions

Charlie Goetsch — Sat, 15 Oct 2011 14:10:07 -0500

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: after a signal tester reported an injury, the Railroad sent a disciplinary charge letter scheduling an investigation; however, the investigation hearing was never held, and the Railroad eventually dropped the charges.

The worker contended that the filing of charges scheduling a disciplinary hearing is in and of itself an adverse unfavorable personnel action, whereas the Railroad argued no adverse action took place because the employee was not actually disciplined in any way. OSHA ruled in the worker's favor, and then a full trial was held before Administrative Law Judge Timlin.

Judge Timlin began her analysis by pointing out that whistleblower laws such as the FRSA "consistently have been recognized as remedial statutes warranting broad interpretation and application." Indeed, the ARB stresses that the list of prohibited activities is quite broad, and includes reprimands (verbal or written), written warnings, and counseling sessions where the potential for future discipline is implied. And in fact the ARB holds that the scope of adverse action under whistleblower laws is even broader than the scope of adverse action under the Supreme Court's Burlington Northern v. White Title VII standard.

In ruling that the charge letter alone is a violation of the FRSA, Judge Timlin stressed that such action is not trivial:

an employer should never be permitted to deliberately single out an employees for unfavorable employment action as retaliation for protected whistleblower activity. . . .

The filing of charges against an employee is not de minimis harm. Those charges are the first step in a disciplinary process that has the potential to culminate in a warning, suspension, or termination. Once charges have been sustained and discipline meted out, the employee is then susceptible to a higher degree of punishment if he or she commits a subsequent offense. This is likely to have a chilling effect on reasonable employees, who may be dissuaded from filing injury reports for fear of being charged with safety violations and potentially being disciplined. Indeed, Complainant employee said she considered the charge letter and hearing to be very serious because she was afraid that money, lost time, and promotions were at risk due to the charges against her. . . .

The Railroad's contention that no adverse action occurred in this case because Complainant was never actually disciplined in contrary to the law. I find the filing of charges against Complainant which carried the potential for future discipline was an unfavorable personnel action.

Vernace v. PATH Rail at pages 24-27. For the full decision, click here. The moral is, once a railroad serves an employee with a charge letter, it cannot escape a FRSA violation even if it cancels the hearing and drops the charges.

Bogus Election of Remedies FRSA Defense Finally Laid to Rest

Charlie Goetsch — Tue, 04 Oct 2011 11:02:55 -0500

The long wait is over. The Administrative Review Board has officially laid the railroad's bogus "election of remedies" defense to rest. In Mercier v. Union Pacific Railroad Co., the ARB has declared once and for all that rail workers are entitled to simultaneously pursue their rights under the Federal Rail Safety Act while also defending themselves under their collective bargaining agreement.

This confirms a worker does not waive his right to pursue a FRSA whistleblower complaint just because he also invokes his CBA right to contest a railroad's decision to impose discipline. The best way to conceptualize this is to imagine two parallel tracks that never intersect or interfere with the other. On one track the union pursues the RLA arbitration rights of its members. On the other track the worker is free to pursue his FRSA whistleblower protection rights.

All good things come to those who wait. For a list of prior blog posts on the election of remedies issue, click here.

New OSHA Whistleblower Manual Issued

Charlie Goetsch — Mon, 03 Oct 2011 14:12:42 -0500

OSHA's Whistleblower Office has issued a revised and updated Whistleblower Investigations Manual that applies to complaints under the Federal Rail Safety Act. The Manual explains the process from start to finish, and workers and attorneys will find it useful to orient themselves as to the steps involved in FRSA complaints.

Two points of note: the Manual confirms OSHA investigators are to provide a copy of the railroad's response to the complainant, and confirms OSHA takes the position that the FRSA "election of remedies" subsection "does not preclude a FRSA complaint where an employee has pursued a grievance and/or arbitration pursuant to the employee's collective bargaining agreement."

For the complete text of the new Whistleblower Investigations Manual, click here. Tip: the Manual is very lengthy and covers a dozen different whistleblower laws, so use the Table of Contents to identify relevant sections to print out.

When Rail Workers Can Recover For Outrageous Conduct

Charlie Goetsch — Tue, 27 Sep 2011 13:25:01 -0500

A leading U.S. Circuit Court of Appeals has clarified when rail workers can recover damages for outrageous conduct by their employer railroad. Building on two cases that I handled (Metro North Railroad v. Buckley in the U.S. Supreme Court and Higgins v. Metro North Railroad in the Second Circuit), the Second Circuit Court of Appeals has declared that a worker can recover for a purely emotional injury (involving no physical impact) only if he or she was within a "zone of danger of physical impact."

Goodrich v. LIRR involved an electrician who sought to recover under the Federal Employers Liability Act (FELA) for his emotional distress after a fellow worker intentionally posted his HIV positive status on a company bulletin board. The Circuit Court ruled that under the FELA the electrician could not recover because there was no physical impact or threat of physical impact involved. So no matter how outrageous the conduct, unless there is some physical impact or imminent threat of serious physical impact, under the FELA a railroad worker has no recovery for emotional distress.

But that is not the case if the worker is protected by the Federal Rail Safety Act. Under the FRSA, physical impact is not necessary for the recovery of emotional distress damages, and a worker can recover for any emotional distress resulting from a railroad's violation of his FRSA rights. And punitive damages up to $250,000 also are recoverable under the FRSA for outrageous conduct by the railroad.

So, even if a worker has no claim under the FELA for emotional distress, he still may be able to recover emotional distress damages under the FRSA.

Major Decisions Mandate Full Award Of FRSA Attorney Fees

Charlie Goetsch — Mon, 19 Sep 2011 20:03:29 -0500

Fighting Federal Rail Safety Act claims just got a lot more expensive for railroads. Two recent appellate court decisions confirm that---no matter how small a worker's FRSA economic damages may be--the railroad has to pay the FULL amount of the worker's attorneys fees and costs. The appellate decisions apply to FRSA cases in the administrative law system as well as in federal court.

The Second Circuit Court of Appeals is just one step below the United States Supreme Court. In an opinion directly applicable to FRSA cases, the Second Circuit held there is no such thing as a "de minimis" award in a fee-shifting case. In Millea v. Metro North Railroad, the worker succeeded on one of two FMLA counts and recovered $615 in wages. Instead of awarding Millea's attorney $144,000 in attorney fees, the trial judge only awarded $204, finding that the award was "de minimis" and had "no public policy significance." Declaring that to be "legal error" and an "abuse of discretion," the Second Circuit reversed.

The Second Circuit stressed that by enacting fee-shifting provisions in statutes such as the FRSA, Congress "has already made the policy determination that such claims serve an important public policy purpose disproportionate to their cash value." As such, there is no such thing as a "de minimis" recovery under the FRSA. Such

claims are often small-ticket items, and small damages awards should be expected without raising the inference that the victory was technical or de minimis. . . . Especially for claims where the financial recovery is likely to be small, calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery.

Similarly, the administrative appeals court for the FRSA, the Administrative Review Board (ARB), confirms that when a worker prevails on any part of his claim, he "is entitled to all costs and expenses including attorney's fees reasonably incurred in bringing his complaint." And the ARB flatly refuses to reduce an attorney's fee award because the amount of the fee is larger than the wages recovered by the worker. Why? Because to do so would chill attorneys from taking cases where the economic losses are small in relation to the time expended by the attorney. Thus, in Furland v. American Airlines, the worker was awarded $915 in lost wages and $39,000 in attorney's fees, and the ARB refused "to reduce the attorney fee award based on its disproportionate size or because the worker only prevailed on part of his claims." So even when a worker only wins part of his FRSA claim, the railroad still has to pay the full amount of attorney's fees, no matter how small the lost wages may be.

Bottom line? The reflexive denial of FRSA claims is no longer a cost-free option for railroads. Every worker's attorney can rest easy in the knowledge that the more a railroad drags out a FRSA case, the more the attorney will get paid. And railroads must be prepared to pay ALL the fees for the lawyers on BOTH sides, even in small damage cases where only one part of the claim succeeds.

FRSA Bars Discipline For "Late" Injury Reporting

Charlie Goetsch — Tue, 13 Sep 2011 20:29:02 -0500

It's one of the hoariest acts in the railroad repertoire of retaliation: first, invent rules setting an arbitrary deadline for the reporting of injuries, and then use the threat of discipline under those rules to discourage the reporting of injuries. Classic examples of absurd reporting rules are Metro North Railroad's "all injuries must be reported immediately" and CSX Transportation's "all injuries must be reported prior to the end of the shift." Such arbitrary rules outlaw entire categories of FRA reportable injuries.

No more. Under the Federal Rail Safety Act, the reporting of injuries cannot be used as the basis for discipline. And because any discipline for "late reporting" is necessarily based on the reporting of an injury, it is a prima facie violation of the FRSA. And railroads who continue to discipline for "late reporting" are getting slammed with record high punitive damages. See, for example, Harvey v. Union Pacific Railroad.

So, thanks to the FRSA, there is no longer any such thing as the "late reporting" of an injury. The railroad repertoire of retaliation just keeps getting smaller and smaller.