Train Law Blog

PATH Hit With FRSA Punitive Damages

Charlie Goetsch — Thu, 04 Mar 2010 13:03:47 -0500

The first Federal Rail Safety Act complaint against the Port Authority Trans-Hudson railroad has resulted in an award of punitive damages. The fact pattern is familiar to any railroad worker.

Laura, a Signal Tester, was injured on duty due to defective equipment, and duly reported her injury. But instead of using the incident as an opportunity to identify and correct the root cause of the safety hazard (namely, why the railroad allowed the defective equipment to remain in use), PATH Superintendent Fred Childs sent her a disciplinary charge letter alleging the injury was solely her fault. A typical "blame the victim and ignore the systemic cause" reaction by rail management that happens every day on railroads across the nation, and is a major reason why safety hazards persist.

But things have changed. The FRSA is in effect now, and with my help Laura stood up for her FRSA right to be protected from such retaliatory action. OSHA conducted a thorough investigation, and found that no one else was charged with any safety violations for allowing the defective equipment to remain in use, and that the Railroad could have investigated the circumstances of the incident without ordering the injured employee to face a disciplinary hearing. OSHA concluded that if Laura had not reported an injury, no charge letter would have been sent.

What is interesting here is that Laura did not actually attend any disciplinary hearing or suffer any discipline. She just received an initial charge letter. And OSHA ruled such conduct is a violation of the FRSA that must be remedied. To make Laura whole, OSHA ordered PATH to expunge her disciplinary records and pay punitive damages and attorney fees. Of particular interest is the empowering NOTICE TO EMPLOYEES the Railroad must post on all of its bulletin boards.

So here's to Laura! By standing up for her FRSA rights she is at the forefront of a grass roots movement of workers acting to correct the imbalance of power between rail labor and management.

Rail Labor Works Together To Strengthen FRSA

Charlie Goetsch — Sun, 28 Feb 2010 15:28:56 -0500

When rail labor works together, good things happen. Case in point: a critical meeting last September 15th with the Department of Labor regarding the true meaning of "election of remedies" under the Federal Rail Safety Act (FRSA) is now bearing fruit.

In early September, the DOL appeared headed toward accepting rail management's argument that an employee's participation in the Railway Labor Act (RLA) process constitutes an irrevocable "election of remedies" barring the employee from the protections of the FRSA. However, the DOL asked to hear rail labor's point of view, and invited a few rail labor attorneys to attend a September 15th summit to discuss the issue.

As the attorney who first weighed in on this issue and was set to try the first FRSA cases in November, the DOL asked me to attend. What happened next illustrates the power of working together. BMWED Director of Safety Rick Inclima and St. Paul rail labor attorney Charlie Collins reached out to the invitees, urging us to coordinate our efforts for maximum effect and offering the IBT's Headquarters as a location for us to meet beforehand. And coordinate we did. In addition to Rick and Charlie, Jim Farina and Steve Garmisa showed up from Hoey & Farina in Chicago, as did San Diego rail labor atorney Harry Zanville and UTU Associate General Counsel Kevin Brodar from Cleveland.

We put our heads together. Our challenge was to convince the DOL that the FRSA and the RLA exist on separate parallel tracks with neither one excluding the other. To do that, we had to explain the very real practical differences between the RLA process and the whistleblower protections of the FRSA. It was agreed I would kick off the discussion, and that afternoon we met with high level personnel from the DOL's Solicitor General Office and Directorate of Enforcement Programs.

We had an intense back and forth for over two hours. I opened it up by pointing out that the purpose of the FRSA is to change rail management's culture of retaliation, and the way to do that is to allow the FRSA to operate independently of the RLA. By the end of the meeting I believe we were able to open up DOL's eyes to the fact that RLA proceedings simply do not address or remedy whistleblower retaliation, and that the interpretation sought by rail management would eviscerate the FRSA and return us to the unacceptable status quo before Congress enacted the FRSA.

Now it appears our efforts are bearing fruit. The DOL's Assistant Secretary for OSHA just asked to file an amicus appeal brief with the Administrative Review Board on the issue of "election of remedies," and the BMWED put out a Press Release noting the tide has turned. The sense we are getting is that OSHA now is directing its Whistleblower investigators to conduct their FRSA investigations regardless of any RLA proceedings. And so, thanks to the cooperative efforts of rail labor, the FRSA and RLA will forever operate on separate parallel tracks, where they belong.

BMWED President Freddie Simpson said it best in his Press Release: "Railroads will no longer be able to retaliate against railroad employees who report injuries and safety violations with impunity. This is a substantial victory for all of Rail Labor and every rail worker nationwide, and I am proud that BMWED led the way to this important victory." And to that I can only add, "Amend brother!"

FRSA Overturns Retaliation for Reporting an Injury

Charlie Goetsch — Thu, 11 Feb 2010 20:28:21 -0500

Here's another example of what happens when a railroad tries to blame an injured worker instead of taking responsibility for the workplace culture that caused the injury in the first place. Declaring "An employer does not have the right to retaliate against its employees who report work-related injuries," OSHA's Whistleblower Office ordered two Illinois railroads to pay over $80,000 in back wages, compensatory damages, and attorney's fees to a former worker who reported an injury and then was subjected to a railroad "investigation" that resulted in his termination. Click here for OSHA's press release, and click here for the full text of the Federal Rail Safety Act that shields employees from such retaliation.

Railroad Passenger Safety: No Margin for Error

Charlie Goetsch — Sat, 30 Jan 2010 12:06:19 -0500

Every railroad will tell you its goal is "to provide safe trains that arrive on time." But when safety falls short of the slogan, often it is passengers who pay the price. The latest example comes from New Jersey Transit, where a passenger was dragged to death when train doors malfunctioned. But the law holds railroads accountable to the highest standard of care when it comes to providing for the safety of passengers. Whether it be train doors on NJ Transit, or platform gaps on LIRR, or mainline train collisions, holding railroads legally accountable for passenger injuries is the only way for the public to enforce rail safety standards.

FRA Requires Stronger Rail Cars

Charlie Goetsch — Fri, 08 Jan 2010 09:05:31 -0500

Starting in March, commuter rail cars must be built with stronger front-end frames to better protect passengers during collisions. click here This is good news, but underscores the importance of avoiding collisions in the first place. How? Rail workers are the eyes and ears of safety on the tracks. If they hestitate to raise safety concerns for fear of management retaliation, we all are at risk. But two new laws protect railroad workers (FRSA) and subway workers (NTSSA) who raise safety concerns. Enlightened railroads should spread the word among their employees and welcome any and all safety "complaints." For the sake of rail safety, railroads have got to stop treating such workers as malcontents worthy of retaliation. And if workers invoke their protections under the FRSA and NTSSA, that will begin to happen.

A Look Back and Forward

Charlie Goetsch — Thu, 31 Dec 2009 17:10:36 -0500

Here's a quick look back at some of this year's notable developments in the rail safety world:

March: FRA bans railroad supervisors from medical examining rooms: click here

June: OSHA's Whistleblower Office issues $300,000 in punitive damages against Metro North Railroad for violations of the Federal Rail Safety Act FRSA, setting important precedent: click here

October: Judge confirms FRSA punitive damages apply to publicly owned commuter railroads:click here

November: Judge confirms FRSA prohibits railroads from interfering with the medical treatment plan of employees' treating doctors: click here

November: the first trial in the nation of a FRSA complaint is held in New Haven, Connecticut, against Metro North Railroad (stay tuned for the Judge's decision in early 2010)

And looking forward to 2010, here's hoping:

---for more rulings rejecting rail management's bogus argument that the participation of employees in Railway Labor Act disciplinary proceedings somehow constitutes an "election of remedies" that bars them from the whistleblower protections of the FRSA;

---for judicial rulings establishing that under the FRSA, an employee's treating doctor "trumps" over whatever a railroad manager or medical department may think or want to do;

---to increase the beneficial effect of the FRSA's sister law, the NTSSA (which protects subway system employees who raise safety concerns) by encouraging its application on major subway systems such as New York City Transit and the Washington DC Metro.

Meanwhile, here's wishing everyone a safe and productive new year!

New Law Protects Subway Workers From Whistleblower Retaliation

Charlie Goetsch — Tue, 01 Dec 2009 08:08:27 -0500

In response to last summer's fatal Metro subway crash in Washington DC, Congress now is proposing to extend federal rail safety standards to subway and light-rail lines currently "regulated" by understaffed local safety personnel wielding toothless rules. See NY Times Editorial. This would be a great step forward in ensuring the safety of the commuting public. But there is a little known law already on the books that if put to proper use will be a powerful tool to ensure subway safety.

The National Transit Systems Security Act (NTSSA) is a new whistleblower law that protects subway workers who report hazardous safety conditions. The NTSSA prohibits subways from retaliating or discriminating in any way against employees who report unsafe conditions or any fraud and waste of funds. And if the subway does retaliate, the NTSSA's remedies include reinstatement, back pay, compensatory damages, and up to $250,000 in punitive damages.

So one way to ensure the ongoing safety of subway systems is for employees to vigorously exercise and enforce their new rights under the NTSSA. But this has yet to happen. For example, OSHA's Region II Whistleblower Office confirms that the single largest group of subway workers in the nation, the nearly 40,000 members of TWU Local 100 who work for the MTA NYC Transit Authority, have generated a mere handful of NTSSA complaints. Given the size and history of the NYC subway and bus system, this can only mean the rank and file workers are unaware of their new rights under the NTSSA. Those workers are the eyes and ears of safety in the subway. Something must be done to raise their awareness and encourage them to speak out whenever they see a safety hazard.

How To Deal With Railroad Claim Agents

Charlie Goetsch — Mon, 23 Nov 2009 12:01:24 -0500

Joe Coleman from Seattle asks whether union reps can be present when a worker gives a statement to a railroad claims agent. The real question is, why would a railroad worker NOT have his union rep present?

No way can there be ever be a level playing field between a claim agent and an injured worker. Think about it. A claim agent is a manager whose only job is to save the railroad money. He is a professional trained to ask leading questions that steer the worker into incriminating answers that will insulate the railroad from liability. The injured worker, on the other hand, finds himself suddenly thrust into a bewildering process with no idea how to protect his legal interests.

Always remember, you don't have to give a statement to a claim agent. If a claim agent asks you to come in and give a statement, ask the claim agent if your union rep can be there with you. If the answer is no, that is all the proof of unfairness you need, and just walk away.

Before giving any statement, it is always best to at least consult with an experienced FELA attorney who can advise you how to protect your long term interests. But at the very least, talk to an experienced union rep who can be there to keep the claim agent honest.

So don't be fooled by the "friendly" claim agent who just "wants to help" and, by the way, just needs to take a "short statement on the record" before he will process your medical bills and so on. He will smile and joke and take your statement, and then months or years later when you go to settle your claim, he will pull out your statement and say, "Gee, what do you want from us? You yourself stated it was just an accident that could not have been avoided. You're lucky we even paid your medical bills."

Groundbreaking Decision On FRSA Medical Interference

Charlie Goetsch — Thu, 12 Nov 2009 17:07:02 -0500

Railroad Medical Departments, beware, you can no longer interfere with an injured employee's medical treatment. Subsection (c) of the Federal Rail Safety Act prohibits a railroad from denying, delaying, or interfering with the medical treatment of an injured employee. The FRSA also prohibits a railroad from disciplining an employee for following the orders or treatment plan of his treating doctor. The railroads argue this FRSA protection only applies to an injured employee's emergency medical treatment. But in the first decision interpreting the meaning and scope of FRSA subsection (c), Administrative Law Judge Colleen A. Geraghty has made it clear the FRSA's

provisions protect employees from interference with medical care or the treatment plan of a treating physician during the course of treatment and recovery from a work injury. . . . Accordingly, an employer's changing the classification of an injury occurring at the workplace to a non-occupational injury may rise to the level of "interference with medical treatment" depending on the circumstances.

For a link to the full opinion, click Santiago v. Metro North Railroad. Metro North had reported Santiago's on the job injury to the FRA as occupational and paid for Santiago's medical bills accordingly. But then in the middle of his treatment, the Metro North Medical Department unilaterally reclassified Santiago's injury as non-occupational (without amending its FRA report), thus forcing him to choose between forgoing his treating doctor's medical treatment plan or paying for it from his own funds. The result? He now has personally paid or owes over $16,000 in medical bills. His case is going to trial next week. Stay tuned for any punitive damage award.

When Is A Railroad Worker On Duty?

Charlie Goetsch — Mon, 02 Nov 2009 09:00:00 -0500

An OSHA whistleblower investigator recently asked whether railroad employees are considered to be on duty within the scope of their employement when walking over railroad property prior to the beginning of their shift or when leaving railroad property after their shift is over. Funny she asked me. The leading court decision happens to be a case I tried 20 years ago, Dolores Schneider v. National Railroad Passenger Corp.

The short answer is yes. The appellate court ruled that an "employee traversing the employer's premises to report to or to leave the job within a reasonable time of her shift is fulfilling a function necessarily incident to employment" and thus considered to be on duty within the scope of employment.

So don't let the railroad tell you otherwise. When a railroad worker gets injured just before or after their shift begins or ends, their injury is still covered by the Federal Employers' Liability Act (FELA), and the railroad must report it to the FRA as an "on-duty injury" that is shielded from any adverse action by the Federal Rail Safety Act (FRSA).

Judge Rules ALL Railroads Subject to FRSA Punitive Damages!

Charlie Goetsch — Tue, 27 Oct 2009 17:25:44 -0500

Metro North Railroad's attempt to exempt itself from punitive damages under the Federal Rail Safety Act has failed. In a case of first impression, an ALJ has just ruled that ALL railroads--including publicly owned commuter railroads--are subject to the FRSA's punitive damage remedy. Plus, the ALJ is requiring Metro North Railroad to go through the past 196 injuries it reported to the FRA and produce documents confirming any discipline initated against the employees who reported those injuries. Why? Because when "determining whether punitive damages are warranted . . . prior similar acts may be important in determining whether a wrongdoer's conduct was reprehensible and thus subject to punitive damages." This is a major step forward in ensuring the protection of railroad workers who report injuries or safety concerns. To read the ALJ's detailed and well-reasoned decision, click here, and to see OSHA's earlier ruling regarding my four clients,click here.

The Fatal Consequences of Railroad Retaliation

Charlie Goetsch — Mon, 19 Oct 2009 09:00:00 -0500

Here's a true story that should give any railroad supervisor pause. The fact is, you never know where an act of retaliation will lead. After you commit an act of retaliation, you simply can not control how it reverberates in people's lives. And while all retaliation hurts, it can kill as well. It's like a felony-murder: when in the course of a robbery someone gets unforseeably killed, the robber is still guilty of murder even though he never intended anyone to die.

Case in point. A notorious Metro North supervisor with a long history of abusing his authority decided to humiliate one of his electricians in front of his gang. Why? Because the worker was taking FMLA leave to be with his wife for the birth of their baby and to help her during the weeks thereafter.

The electrician complained to Metro North's Workforce Diversity Department, who commenced an investigation. In response, the supervisor proceeded to retaliate against the worker by improperly abolishing his job and then refusing to allow him to transfer into a different district, trapping him. The public humiliation and the cumulative abuse was the last straw that broke the worker's emotional equilibrium. He felt his choice was to return to work and "go postal" when he saw the supervisor again, or to give up his railroad career. He chose to avoid violence and resign (the law calls that a "constructive discharge" because the railroad made his work life so intolerable it forced his resignation).

The problem is, he then lost medical coverage for his wife and baby, he lost his regular income and pension, and he struggled to replace the wages and self-respect he earned in his railroad job. Metro North's Workforce Diversity Office completed its investigation of the supervisor, and concluded the supervisor was guilty and deserving of severe discipline. But what happened? His managers refused to accept Metro North's own ruling, and watered down the discipline so it was meaningless.

Several weeks later, the worker put a bullet in his head. A life destroyed, a productive career lost, a family devastated, a baby girl who will never know the love of her father. And all because the Railroad's managers reflexively protect their abusive supervisors.

Of course, when sued for wrongful death and FMLA violations Metro North tried to wriggle out from its liability, but the federal judge has refused to let the Railroad off the hook. Metro North now will have to face a jury, who will decide under the Federal Employers' Liability Act (FELA) whether the Railroad's conduct played any part at all in causing the worker's death. Let us all pray that, for the sake of his widow and baby girl, justice will prevail.

Metro North Railroad and LIRR Beware!

Charlie Goetsch — Mon, 28 Sep 2009 08:45:26 -0500

The civil penalties for discrimination just got steeper and more painful for Metro North Railroad and Long Island Railroad. Metro North and LIRR now are subject to new penalties of up to $100,000 for violations of New York State's Human Rights Law. N.Y. Exec. Law Section 290 et seq.

New York's law prohibits discrimination in employment based on disability, age, sex, or race. Now, for conduct occurring after July 6, 2009, Metro North and LIRR are exposed to penalties of $50,000 for such discrimination and up to $100,000 for discriminatory acts that are willful, wanton, or malicious. These civil penalties may be demanded in civil lawsuits brought by railroad employees, and apply not only to the Railroad but to individual supervisors and managers.

The New York Commissioner of Human Rights declared "this amendment to our law will provide the Division with a very powerful tool to fight discrimination." Press Release. And how. So Metro North and LIRR railroad managers beware, your decision to discriminate will cost you dearly.

Why Railroad Managers Retaliate

Charlie Goetsch — Wed, 16 Sep 2009 15:31:24 -0500

Here's an open secret: retaliation is the hallmark of an insecure manager who has no clue how to lead workers and who knows in his heart he is not qualified to be in a position of power.

Insecure rail managers perceive reports of safety concerns or injuries as a personal affront to their authority and react by striking back against the employee. Enlightened managers welcome reports of safety problems as an opportunity to improve conditions and take steps to avoid future injuries. Their response is: "Thank you for bringing that to my attention, we will look into it right away and make the necessary corrections to ensure something like that never happens again." But instead of treating a safety or injury report as an opportunity to correct an underlying problem, insecure managers "shoot the messenger" by automatically retaliating against the employee.

The problem is, reporting safety concerns and injuries are now "protected activities" under the Federal Rail Safety Act and cannot be subject to any adverse consequences such as discipline or discrimination. And any such retaliation against employees who report injuries or safety concerns is illegal under the FRSA and will result in punitive damages awards.

So here's how railroads can innoculate themselves against expensive FRSA retaliation claims: treat employee injuries and safety complaints as neutral events. That means changing your management culture so that safety complaints and injury reports are viewed as neutral events that do not provoke adverse consequences.

A corollary of this means changing the financial incentives for railroad managers. The Federal Rail Administration has noted that the annual compensation of managers is affected by the number of injuries reported by employees under their supervision. Is it any wonder then that rail managers react to the report of an injury as if the employee is taking money out of the manager's pocket? Is it any surprise managers find ways to discourage and chill the reporting of injurires? Instead, why not base the financial compensation of rail managers on how they correct the underlying problems that lead to an injury? So that instead of focusing on disciplining the injured employee, managers focus on eliminating the risk of future injuries?

So that's the secret that will put attorneys like me out of the FRSA enforcement business. See, e.g., $300,000 in punitives against Metro North Railroad. All it takes is a change in the culture of rail management from one of retaliation to one of risk remediation. Railroads can do it the easy way (voluntarily) or the hard way (getting hammered by FRSA damages), but one way or the other, the culture of rail management will change. And for that, we can thank the FRSA.

Judge Rules FRSA Complaints Not Precluded By RLA Proceedings

Charlie Goetsch — Thu, 30 Jul 2009 08:47:20 -0500

The railroads obviously have gotten together and agreed to push the bogus argument that any involvement by an employee in the Railway Labor Act CBA grievance-discipline process automatically constitutes an "election of remedies" under Federal Rail Safety Act subsection (f) that precludes any FRSA complaint. It is a bogus argument because it completely ignores the effect of subsection (g) entitled No Preemption and subsection (h) entitled Rights Retained by Employee, which must be read together and harmonized with subsection (f).

As railroad lawyers representing employees, it is critical that we give any OSHA investigators and Administrative Law Judges presented with that bogus "election of remedies" argument the means to reject it out of hand. Back in January I laid out my detailed argument for the holistic analysis of FRSA subsections (f), (g), and (h). "The Real Meaning of Election of Remedies Under the FRSA" And last month, in a well-reasoned and persuasive decision, Administrative Law Judge Daniel L. Leland confirmed that subsection (f) cannot be read in isolation but must be read together and reconciled with (g) and (h). And when that is done, the conclusion that the FRSA is not precluded by the RLA grievance-arbitration process is inescapable. Click here for the full Mercier v. Union Pacific Railroad opinion.

The Mercier decision was just certified to the Administrative Review Board for an interlocutory appeal, and has been assigned docket number ARB #09121. It currently is in the hands of General Counsel Janet Dunlap, who presumably will be issuing an Order regarding a briefing schedule. An ALJ decision that completely ignores the effect of subsections (g) and (h), Koger v. Norfolk Southern Railway Company, ARB # 09101, is currently in the briefing stage. Given what is at stake (unlike ALJ decisions, ARB decisions are binding on OSHA nationwide) amicus briefs in support of the ALJ's analysis in Mercier are definitely in order.

Subcontracting Is No Escape From FELA and FRSA Liability

Charlie Goetsch — Tue, 21 Jul 2009 09:24:16 -0500

Rail union rep Joe Coleman from Seattle has a question about the FELA liability of railroads who contract out work. His General Foreman recently hired subcontractors to band freight car loads that had shifted due to broken banding, and when challenged tried to justify it by arguing that since the subcontractors are self-insured, the railroad will save on FELA liability.

It ain't necessarily so. Federal Employers Liability Act liability cannot be contractually waived, 45 U.S.C. 55, and the Supreme Court holds that "non-railroad" employees are nevertheless covered by the FELA if they are (1) a borrowed servant of the railroad, (2) a servant acting for two masters simultaneously, or (3) a subservant of a company that was in turn a servant of the railroad. Kelly v Southern Pacific Co 419 US 318, 324 (1974). When determining whether a person is a borrowed servant or dual servant under the FELA, courts look at several factors: (1) who exercised significant supervisory control over the worker at the time of the injury; (2) who selected the worker; and (3) who paid his or her wages. The overriding consideration is whether the railroad had control of (or the right to control) the worker in the performance of his duties, and where evidence of control of the employee's activities is in dispute, the case must go to a jury. Vanskike v ACF Indus. Inc., 665 F.2d 188, 198 (8th Cir, 1981).

So don't let managers bluff you with such lame justifications for violating your contracting out rules----railroad laws such as the FELA do not disappear merely because a railroad says so. Employees of railroad subcontractors can still sue the railroad under the FELA. And by the way, railroad contractors also are covered by the anti-retaliation provisions of the Federal Rail Safety Act. Under the FRSA, a railroad subcontractor cannot retaliate against its own employees who report safety violations or personal injuries.

OSHA HAMMERS METRO NORTH WITH $300,000 IN FRSA PUNITIVE DAMAGES!

Charlie Goetsch — Thu, 18 Jun 2009 13:38:54 -0500

Talk about sending a message! OSHA has blown the whistle on Metro North Railroad's culture of retaliation. Big time. No longer do railroad workers have to fear reporting an injury or a safety violation. The days when railroad managers could retaliate with impunity are officially over. Every railroad in the country is now on notice that retaliation by managers will lead to punitive damages.

Under the new Federal Rail Safety Act (FRSA), railroad workers are protected from retaliation when they report any injuries or safety violations. These four workers turned to my railroad law firm for help when Metro North retaliated against them for reporting their railyard injuries: Ralph Tagliatela of West Haven, CT (station custodian), Larry Ellis of the Bronx, NY (car cleaner in GCT) Andy Barati of Waterbury, CT (trackman), and Anthony Santiago of Hopewell Junction, NY (shop electrician). We filed FRSA complaints that have resulted in the following remedies: $75,000 in punitive damages to each employee (total of $300,000); up to $10,000 in compensatory damages (total of $40,000); all lost wages with 6% interest; expungement of discipline records; barring Metro North from using injury sick days or injury reports to bar transfers or promotions; forcing Metro North to give each of its employees a copy of the OSHA Whistleblower Fact Sheet explaining their rights under the FRSA; and attorney's fees. In order to counter the chilling effect of Metro North's past conduct on all employees and to ensure protection from future retaliation, these complainants are posting OSHA's official Merit Findings here in order to show how OSHA enforces the FRSA rights of rail employees: Tagliatela Ellis Barati and Santiago. For the FRSA Fact Sheet click here.

In the first wave of FRSA whistleblower complaints, this group stands out both for the variety of the management retaliation and the strength of OSHA's response. As the railroad lawyer for all four employees, I can attest to the savvy of the OSHA investigator, who promptly launched her investigations and didn't let up until she had a thorough grasp of Metro North's culture of retaliation against employees who report injuries and safety concerns.

OSHA issued a press release that included this statement: "Railroad employees have the right to report occupational injuries and illnesses without fear that doing so will negatively affect their jobs, their health or their income," said Jordan Barab, acting U.S. assistant secretary of labor for safety and health. "Retaliating against employees for exercising this basic, legally protected workplace right is unacceptable."

On Metro North, OSHA's whistleblower investigators quickly ran into the stonewall of an entrenched management culture in which retaliation against employees is expected and rewarded. And Metro North's own conduct in response to the FRSA complaints was the ultimate proof of that problem: Metro North flatly refused to cooperate with OSHA's reasonable demands for documents while asserting ridiculous interpretations of the FRSA's broad remedial language. See this earlier blog entry where I predicted that such stonewalling will result in punitive damages. These cases prove my point: the shortest distance between a FRSA complaint and a punitive damages award is for railroads to tell OSHA to go pound sand. The only thing that will get pounded is the railroad.

So for railroads across the country, the days of care-free retaliation are over. Refusing to change your ways is not an option. This action by OSHA proves the FRSA has sharp teeth that will shred recalcitrant railroads to pieces, while costing them real money. The message is clear: stop retaliating against employees, or get out your check book.

For more information on how the FRSA protects railroad workers, check out trainlawblog.com and trainlaw.com.

FRA Bars Supervisors From Medical Exam Rooms

Charlie Goetsch — Tue, 02 Jun 2009 20:00:43 -0500

The opportunities for railroad supervisors to harass injured workers just keeps getting smaller and smaller. The Federal Railroad Administration has now put a stop to the practice of railroad supervisors accompanying injured employees into medical exam rooms. The FRA issued a Notice of Interpretation declaring it to be a violation of federal regulations for a supervisor to be in a medical exam room with an injured employee (the only exception being if the worker is unconscious or has freely invited the supervisor in). FRA Notice

The FRA requires every railroad to adopt an Internal Control Plan confirming that any harassment or intimidation which discourages employees from reporting injuries will not be tolerated. 49 CFR 225.33(a). Despite that requirement, the FRA Guide for Preparing Accident Reports acknowledges that many railroad supervisors engage in practices that circumvent the reporting of injuries, including harassing and disciplining employees who report injuries. Go to FRA Guide p.8

One of the ways supervisors try to make an injury non-reportable is to go into the medical exam room where they can pressure the employee or influence the extent of medical treatment. Those days are over. Now, it is a patent violation of FRA anti-harassment regulations "when a railroad supervisor accompanies an injured employee into an examination room." And that is on top of the protection given by the Federal Railroad Safety Act, which prohibits supervisors from interfering with the medical treatment of injured employees. 49 USC 20109

So employees and union reps, now hear this: when supervisors want to go into the examining room, bar the door! And if a supervisor barges in anyway, file a complaint with the FRA for a violation of 49 CFR 225.33(a) and then file a complaint with OSHA's Whistleblower Office for violation of the FRSA, 49 UCS 20109(a)(4) and (c). Under these new railroad laws, the fines, penalties, attorney's fees, and even punitive damages that result will put a stop to that particular form of railroad intimidation.

Metro North Railroad Violates Family Medical Leave Act

Charlie Goetsch — Thu, 21 May 2009 08:54:17 -0500

After a week long trial, a federal court jury in Hartford, Connecticut, has issued a verdict finding that Metro North Commuter Railroad violated the Family Medical Leave Act when it denied its employee his right to take FMLA absences protected from discipline. The worker is a Gulf War veteran with combat related PTSD who has the right to take intermittent leave to deal with the unforeseeable effects of that serious medical condition. His supervisor's repeated attempts to discourage him from taking FMLA absences escalated into a loud confrontation when the supervisor shouted, "Bid out now or I will find a way to fire you!" This precipitated a major panic attack in the employee, requiring him to take FMLA leave for the rest of that day and the next. The supervisor recorded those leaves as FMLA, but then two weeks later filed disciplinary charges after altering the attendance payroll records to change those days into unprotected non-FMLA absences.

By declaring Metro North violated the FMLA, the jury's verdict exposes Metro North to paying hundreds of thousands of dollars in attorneys fees and costs generated by the lawyers on both sides during two and a half years of federal court litigation. This is the first FMLA case to go to trial against Metro North, and if Metro North's hostility toward the FMLA continues it certainly will not be the last.

OSHA Orders $7.9 Million In Whistleblower Damages

Charlie Goetsch — Wed, 08 Apr 2009 07:56:22 -0500

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 million in compensation and attorneys fees.

And to top it off, OSHA orders the carrier to withdraw the lawsuit and give all its employees notice of their Whistleblower rights. Read about it here. The carrier this time happened to be an airline, but the same scenario would apply to a railroad carrier arrogant enough to do the same to its workers. And we all know there is no dearth of arrogant railroad managers out there who think they have a license to retaliate against employees who dare to raise safety and injury concerns. So get ready for a flurry of tough orders against rail carriers, now that the first wave of OSHA investigations under the relatively new Federal Railroad Safety Act are coming to a head.