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Railroad Injury Blog

Are You Being Targeted by a Railroad Double Standard?

Tuesday, August 29, 2017

It happens a lot around the railroad – double standards.  Jeff seems to always get away with wearing jewelry, but suddenly I’m the one getting busted!  Kevin’s absenteeism is much worse, but I’m the one being charged! There’s always someone hiding in the bushes watching me, but no one ever seems out to get anyone else! It’s because the railroads frequently punish employees who report injuries, hazardous safety conditions, or try to comply with their own doctor’s orders (which may include time off from work).

Protection of the FRSA

The Federal Rail Safety Act (“FRSA”) was designed to protect against exactly this kind of behavior.  The FRSA safeguards employees who notify the railroad of their (or a co-worker’s) work-related injury or illness, report a safety problem, refuse to do unsafe work, or comply with a doctor’s orders, among many other things. This is called “protected activity.” A railroad who knows an employee has engaged in protected activity cannot punish the employee by suspending them, terminating them, or discriminating against them in any way.

When Railroads Violate the FRSA through "Disparate Treatment"

An effective way of proving the railroad has violated the FRSA, is showing the railroad applied a double standard to you. This is known as “disparate treatment” – that the railroad treated you more harshly than others who did the same thing. Often railroads will find any excuse to fail an employee on an efficiency test to punish them. The railroad then uses the trumped up charges from the efficiency test to suspend or terminate the employee.  If other employees were not punished for the same conduct you were punished for, or if they were punished less harshly, this is good evidence the railroad has violated your rights under the FRSA. So if you find yourself thinking: everyone else is doing it; why am I being punished? It may be because the railroad is illegally retaliating against you.

What To Do Next

If should you have any questions regarding a double standard being applied to you, please not hesitate to contact our office for a consultation. Please visit our website or download our railroad worker smart phone here.  You can also reach us directly by calling 800-248-FELA.


Uphill Slow, Downhill Fast. Profits First and Safety Last

Tuesday, August 22, 2017

The New Corporate Strategy at Harrison's CSXT?

It had been my privilege to represent railroad employees for the last quarter-century. During that time, numerous safety improvements have been made almost universally across the railroad industry. I feel strongly that the Federal Employers Liability Act has been the driving force behind those changes. The recent tragedy involving two young CSXT conductors struck and killed by an Amtrak train outside Washington, DC illustrates that railroading is still an incredibly dangerous occupation. However, mandating three-step protection, prohibiting employees from getting on and off moving railroad equipment and mandating the use of a brake stick for tying down and knocking off hand brakes has saved railroad employees from countless injuries. At CSXT, Hunter Harrison has now turned back the hands of time and has eliminated these common sense safety precautions.

 

Three-Step Protection Vanishes

The result? Railroad employees will no longer be utilizing three-step protection, likely resulting in more serious and even life threatening injuries. Employees will also be required to get on and off moving equipment, most often onto dangerously unstable and debris covered ballast, clearly placing themselves at risk for serious injury. Lastly, the elimination of the brake stick will require conductors to climb railroad cars to tie down and knock off hand brakes, exposing themselves to slip and fall injuries, especially in severe weather.

Profits Over People

Why are these changes being made? Profits. The faster movement of freight will result in higher profits and an increase in stock price – all due to the fact that CSXT employees will be placing themselves at greater risk of injury. How do railroad employees counter this obvious lack of concern by CSXT for its employees’ safety? Quite simply, by utilizing the Federal Employers Liability Act, the the most effective law in the railroad industry that promotes safety, to show that these unsafe railroad practices will cost more in the long run.

Unfortunately, our brothers and sisters in the railroad industry will suffer. Please remember, however, that any injury caused by the failure to utilize three-step protection, getting on and off equipment and climbing railroad cars to tie down or knock off hand brakes may impose liability under the Federal Employers Liability Act on CSXT. I encourage all of my union brothers and sisters to complain to CSXT about the lack of safety precautions and to contact Designated Legal Counsel regarding any injury on the railroad. Please continue work as safely as possible but in the event of an injury, you must know your rights.

 


Supreme Court Requires Injured Railroad Employees to Litigate Far From Their Homes

Monday, June 19, 2017

I wanted to write this post for our friends who work in the railroad industry because the Supreme Court recently issued a decision that affects the rights of every railroader. On May 30, 2017, the Supreme Court decided the case BNSF Railway Co. v. Tyrrell. The Court’s decision limits the states where railroad employees can file FELA lawsuits for their injuries. Prior to the Tyrrell case, railroad employees could file their FELA lawsuits against their employer in any state where the employer did business. That rule was based on interpretations of the language in the statute of the FELA itself that, “an action may be brought in a district court of the United States,” in the district “in which the defendant shall be doing business at the time of commencing such action.” The rule allowed for great convenience for injured railroad employees in bringing their lawsuits, particularly employees who are injured over the road and would like to be able to bring a lawsuit close to where they live.

Restrictions on Where Lawsuits Can Be Brought

Under the Supreme Court’s Tyrrell decision, a railroad employee may only bring a lawsuit in a state where the employee’s injury occurred, or in a state where the employer’s “affiliations with the State are so continuous and systematic as to render them essentially at home in the forum State.” This usually means the state that is the employer’s place of incorporation, or the state where the employer has its principal place of business. The Court held that only in an “exceptional case,” will a corporate employer defendant's operations in another state “be so substantial and of such a nature as to render the corporation at home in that State.” The Supreme Court held this ruling is necessary to protect the Due Process rights of corporate employer defendants under the 14th Amendment.

Corporations Over People

The ruling is not only objectionable for continuing to put the “constitutional rights” of corporations above the rights of working people, but it will also have real negative impacts on railroad employee lawsuits. Now, a railroader injured over the road, far away from home, may be unable to sue their own employer in the state where they report for work. Instead, railroaders injured over the road will only be able to sue the railroad in the state where the injury happened, the state where the railroad is headquartered, or the state that is the railroad’s principle place of business. Yet another example of profits over people.

The FELA: Protection Wherever You May Roam

Thursday, March 02, 2017

At a recent railroad union meeting Attorney H. Dave Leibensperger attended there were several questions about the railroad’s responsibility when someone is injured off the work site and we thought it would be good to get some information out about this. It’s important to remember that the railroad’s duty to its employees to provide them with a safe place to work is “non-delegable,” which means they can’t push that responsibility on to anyone else – the railroad is responsible for your workplace safety no matter where you are. The buck stops with your railroad employer. We recently handled a case involving an injury on an industry sidetrack. Even though the railroad did not own or operate the industry sidetrack or property, the railroad employer was held responsible for condition of the industry’s property because it was an area where railroaders were required to perform their duties.

The Responsibility of The Railroad

There are many binding legal precedents holding the railroad’s feet to the fire. The United States Supreme Court, in Shenker v. B. & O. Ry. Co., 374 U.S. 1, 7-8 (1963), ruled that the railroad’s responsibility to provide a safe workplace applies even “when [employees] are required to go onto the premises of a third party over which the railroad has no control.” The Supreme Court ruled the railroad liable for another railroad’s negligent maintenance of mail car that injured the plaintiff. In another Supreme Court case, Sinkler v. Missouri Pac. R. Co., 356 U.S. 326 (1958), the Supreme Court ruled the railroad was liable for the negligence of another railroad’s switching crew. In Payne v. Baltimore & O. R. Co., 309 F.2d 546 (6th Cir. 1962), a federal appeals court ruled the railroad was liable for an accumulation of ash on third-party’s property that killed the plaintiff. In Cazad v. Chesapeake & O. Ry. Co., 622 F.2d 72 (4th Cir. 1980), another federal appeals court ruled the railroad was liable for an injury caused by uncovered drain culvert, again on the property of a third party. In one of the best cases for railroad employees, Empey v. Grand Trunk W. R. Co., 869 F.2d 293 (6th Cir. 1989), a federal appeals court ruled the railroad liable for an injury caused by the negligence of a hotel where the plaintiff was staying in between shifts – the plaintiff slipped on water in the bathroom because the hotel shower was poorly maintained.

Keeping Safe On The Job

So keep in mind, your railroad employer always has to keep you safe on the job – that’s their responsibility to you for all the hard work you give them. If you have an injury that appears it was someone else’s fault, it is still important to contact a lawyer because the railroad’s duty to you is “non-delegable” – it protects you anywhere you are working.

If you  have any questions regarding a potential railroad injury case, contact Attorney H. Dave Leibensperger at (410) 769-5406 or hleibensperger@bsgfdlaw.com
for a consultation. 

New Tool in the Federal Rail Safety Act Tool Belt

Monday, January 16, 2017

You won't believe how the Labor Department has helped railroaders.  Railroaders just got a new tool in their tool belt from the U.S. Department of Labor. A federal court tried to limit the types of injuries and illnesses protected by the Federal Rail Safety Act (“FRSA”), and excluded off-duty injuries and illnesses. The Labor Department decided not to listen and said that even off-duty injuries and illnesses are protected. This will be a great new tool for protecting employees from railroad retaliation.

The FRSA clearly protects employees who tell the railroad about their own (or a co-worker’s) on-duty injury or illness. It also clearly protects employees who follow their doctor’s orders related to an on-duty injury or illness. This can include doctor’s orders to take certain medications or to take time off work. Once an employee tells the railroad about their injury or the doctor’s orders, the railroad cannot punish the employee by suspending them, terminating them, or discriminating against them in any way.

In January 2015, the federal appeals court for the Third Circuit (which covers Delaware, New Jersey, and Pennsylvania) said that the FRSA does not protect employees for following doctor’s orders if the injury or illness occurred off-duty. The court said that only doctors’ orders that are triggered by on-duty injuries or illnesses are covered by the FRSA.

Thankfully, the Labor Department is still on the side of railroad workers. The Labor Department decides FRSA cases before they ever get to court, and it says that even a doctor’s orders for off-duty injuries or illnesses are covered.

The Labor Department said this in a case called Williams v. Grand Trunk Western Railroad Company. In the Williams case, a locomotive engineer was fired for absenteeism after his doctor told him to stay off work. The engineer suffered from anxiety and depression and was prescribed medication that precluded him from working. He told the railroad about his illness and his doctor’s orders, but they fired him anyway. The engineer’s doctor testified that if he worked it would be a “recipe for disaster” to other employees and the general public.

The Labor Department agreed, and said that a railroad cannot punish you for following your doctor’s orders, even if the injury or illness occurred off-duty and is not work-related. This way, you are not forced to choose between working while impaired and risking your job.

The final word on this issue may ultimately be decided by the Supreme Court. Certainly, under the Trump Administration, there will be pressure placed on the Labor Department to reverse its position – but for now we have a good tool to protect employees from the often vindictive railroads.

If you should have any questions regarding a potential whistleblower case, please do not hesitate to contact our office for a consultation. Please visit our website at BermanAndDarby.com and download our railroad worker smart phone app.You can also reach us at 800-248-FELA.

10 Proven Ways to Make Your FELA Case More Valuable

Monday, January 16, 2017

The Federal Employers’ Liability Act (“FELA”) protects railroad employees who are injured due to the railroad’s negligence. Under the FELA, the railroad is still liable even if it is only slightly negligent, even if the employee assumed the risk of their injuries, and even if the employee’s own negligence contributed to their injuries.

The benefits of the FELA aren’t automatic, the employee still has to prove their case that the railroad was negligent, and that they suffered harm.We have handled cases under almost every conceivable factual situation and have seen what makes a case successful.So, we have decided to come up with some things an injured railroader can do to help make sure they recover the appropriate damages as the result of their injuries.

 

10 Tips To Improve the Value of Your FELA Case

Here are 10 proven ways for railroad employees to make their FELA claims more valuable:

  1. Take pictures – take pictures of the effects of your injury.This will help show how significant your injury is.
  2. Do not take video with audio – although it might seem helpful to narrate a video about your injury, your statements in the video will be used against you later.A video without audio showing the injury itself is just fine.
  3. Tell your doctors – when you get treated for your injury, explain to the doctors exactly how it happened, and that it happened at work.
  4. Ask your co-workers – did someone see the injury happen? Has anyone previously reported to the railroad the dangerous condition that injured you? These witnesses can be very helpful to your case.
  5. Stay off social media – Facebook, Instagram, Twitter, Tumblr, these are your enemies. They make money by sharing the details of your life with advertisers. Don’t let them ruin your FELA case by sharing the details of your life with the railroad. The railroad will try to use any picture or statement you make against you.
  6. Do your best to get back to work – everyone knows the best outcome for you is to get better and get back on the job. If your injury precludes you from railroad work, do your best to seek other employment that you are qualified for. FELA cases are always best for those who do their best to help themselves.
  7. But follow your doctor’s orders – if you really can’t work, then you can’t work, and you should always follow all of your doctor’s orders, a right protected under the FRSA Whistleblower law.
  8. Tell the railroad it was at fault – your employer will likely make you fill out a written statement about your injury.It will include a space to describe who was at fault. If the railroad was at fault, say so on the form.
  9. But don’t give a recorded statement – If a railroad claims agent calls you to record an oral statement about your injury, tell them to take a hike (nicely). You don’t have to give the statement, and the railroad only wants to use the statement against you.
  10. You guessed it – call a lawyer! The FELA is a murky federal statute with many twists and turns; you don’t want to try to navigate it on your own. Only lawyers experienced in FELA litigation will be able to help you with the sensitive matter and make the railroad responsible for the injury it caused.

If you should have any questions regarding a potential railroad injury case, please do not hesitate to contact our office for a consultation. Please visit our website at BermanAndDarby.com and download our railroad worker smart phone app.  You can also reach us at 800-248-FELA.

Intimidating Railroad Tactics - Confidential Medical Information

Monday, November 14, 2016

I recently spoke with a railroad client and learned about another example of a railroad overreaching its bounds and intruding on the personal rights of its employees – this time with regard to the right of medical confidentiality.  Given the importance of this issue, I thought it would be a good opportunity to explore this situation in more detail.

I have blogged before about railroad employee’s right under the Federal Rail Safety Act whistleblower provisions to immediate medical treatment under §20109.Specifically, §20109

(c) (1) requires a railroad to promptly arrange to have an injured employee transported to the nearest hospital for appropriate medical care.  As stated previously, in order to trigger this provision of the FRSA whistleblower law, the employee must request the transport.

However, what happens when an employee indicates that they do not require transportation?  In this recent situation, a railroad employee reported an exposure to fumes in a locomotive, but stated he was not adversely affected.  Rather than express a concern about the potential health effects on the employee, the railroad used this opportunity to require him to come into the yard office where he was interrogated by several management employees, including the railroad’s Medical Director by telephone, about his overall health.

For employees in this situation, it is important to understand your right of medical confidentiality. While the railroad may have the right to information regarding your health as it pertains to your ability to safely work on the railroad, it does not mean that they can go on a fishing expedition and require you to reveal information about your overall health to a room full of management employees. That information is confidential and may be used against you in the future.  Accordingly, unless the medical condition is relevant to your ability to work safely and requested under appropriate circumstances, an employee in that situation should consider their right of confidentiality before providing this information.  Of course, if the railroad employee is given a direct order then a charge of insubordination may be implicated.  Therefore, consultation with your Local Chairman or legal counsel is recommended.

This discussion brings to mind another important issue regarding medical confidentiality. In a situation in which the employee does request medical treatment, the railroad is required to transport that employee, if requested, to the closest appropriate medical facility. Once the employee is at that medical facility, the railroad cannot interfere in any way in the employee’s medical treatment. This means that once the employee is under the care of a physician, the railroad’s management has no right to inquire about the employee’s condition or interfere in any way in the employee’s medical treatment.

Should you have any questions regarding this issue or any other related matter, please do not hesitate to contact our office for a consultation. Please visit our website and download our App for Railroad Employees (search “Matt Darby” and “railroad” in App Store).  You can also reach us at 800-248-FELA.

Who Knew What, and When? It’s Important in FRSA Whistleblower Cases

Wednesday, November 09, 2016

The Federal Rail Safety Act (“FRSA”) whistleblower law is one of the most powerful tools in a railroad employee’s arsenal to protect themselves against harassment and intimidation at work. Next year will mark the 10 year anniversary of the implementation of this law, which was passed in recognition of the hostile work environment prevalent across the country in the railroad industry. As we approach this milestone anniversary and reflect upon our office’s extensive experience in handling these cases, I realize that the hoped-for cultural change in the rail industry is frustratingly slow. Despite significant verdicts against railroads across the country, harassment and intimidation regarding safety-related issues continues. Instead of changing behavior, the railroads are looking for new arguments to make to defeat these claims. One such argument is to allege that the key decision-makers with regard to adverse action against an employee were unaware of their safety-related protected activity. I thought it wise to discuss this railroad strategy.

Who Knew What and When?

One of the important aspects of a whistleblower case under the FRSA is: who knew what, and when? The FRSA protects employees who notify the railroad of their (or a co-worker’s) work-related injury or illness, report a hazardous safety or security condition, refuse to perform unsafe work, or provide information regarding fraud related to railroad safety, among many other things. This is called “protected activity.” One of the things an employee must prove is that his or her employer knew that the employee engaged in this conduct (engaged in “protected activity), before the employer retaliated against the employee. A railroad who knows an employee has engaged in protected activity cannot retaliate against the employee by suspending them, terminating them, or discriminating against them in any way.The railroads strategy, therefore, is to insulate the ultimate decision-maker from knowledge of the protected activity. In other words, the higher up the chain the ultimate decision-maker is, the harder it is to prove the knowledge requirement.

The View From The Bench

Conservative judges in some jurisdictions have ruled that the person who ultimately suspends or fires the employee must personally know about the employee’s protected activity for the employee to have a whistleblower case.  More liberal jurisdictions have ruled that it is enough for any manager or witness in the decision-making chain to know about the protected activity.

Either way, it is important for railroad whistleblowers to be able to state who knew what, and when.  Which managers knew you engaged in protected activity? When did they know it?How do you know they knew about it?  The more specific the whistleblower can be about this, the better, and the stronger the whistleblower’s case will be.

What Really Works in FRSA Cases

In handling these cases, we have found that it is important to employ aggressive and thorough investigation and discovery strategies. In one recent case, our office took 22 depositions of railroad employees before we uncovered the factual information which allowed us to argue that there was a clear link between the protected activity and the ultimate decision-maker’s actions. Not unexpectedly, the railroads will use every strategy and stretch the limits of credibility to conceal this information. Despite the challenges, it is important to continue to pursue whistleblower cases across the country so that at some point, the railroads realize it would be better to change their culture of harassment and intimidation rather than continue to fight these cases.

Should you have any questions regarding a potential whistleblower case, please do not hesitate to contact our office for a consultation. Please visit our website at www.bsgfdlaw.com and download our App for Railroad Employees (search “Matt Darby” and “railroad” in App Store).You can also reach us at 800-248-FELA.

Contributory and Comparative Negligence In FELA Cases

Thursday, October 06, 2016

As I indicated last week, to recover damages in a Federal Employers’ Liability Act (FELA) case, there is a requirement that the Railroad act negligently in producing a Railroader’s injuries.  Contributory negligence is a similar concept except that it’s an action or inaction on the part of the Railroader which leads in some manner to his/her own injury. In determining whether a Railroader was contributory negligence a determination is made as to whether he/she took, or failed to take, actions which a reasonably prudent person would have taken under the circumstances. If there is a finding that Railroader acted negligently and that negligence played any part in bringing about his/her own injuries that person will be deemed to be contributorily negligent.

A determination of contributory negligence does not bar a Railroader from recovering damages for his/her injuries. It does result in a reduction of damages in proportion to the amount of negligence attributed to the injured Railroader. This is the concept of comparative negligence. If the finder-of-fact (usually a jury) determines that the Railroader was contributorily negligent, it then must determine the percentage to which the Railroader’s own negligence contributed to his/her injuries. That percentage of negligence is then used to reduce the Railroader’s damages. For example, a jury determines that a Railroader is entitled to damages for his/her injuries in the amount of $1,000.000.00. The jury also makes the determination that the Railroader was contributorily negligent in causing his/her own injuries and that contributory negligence contributed 25% to those injuries. The Court would then reduce the damage award by 25% to $750,000.00.

The real importance of the concepts of contributory and comparative negligence is the fact that a Railroader can recover damages for his/her injuries event if he/she was partially at fault in causing them.

THE SQUEAKY WHEEL GETS THE GREASE

Thursday, October 06, 2016

Everyone has heard the above adage many times and understands what it means. One wonders whether the origin of this phrase comes from the Railroad Industry. In any event, it certainly has modern applicability to a Railroaders rights under the Federal Rail Safety Act Whistleblower Provisions.

One of the strongest provisions of the Federal Rail Safety Act Whistleblower Provisions prohibits a Railroad from denying, delaying or interfering in any way with the medical treatment of an employee who was injured during the course of employment. In addition, if the injured employee requests transportation to a medical facility, as a result of an injury during the course of employment, the Railroad is required to promptly arrange to have the injured Railroad employee transported to the nearest hospital (where the employee can receive safe and appropriate medical care). However, it is incumbent upon the employee to understand these rights and to affirmatively protect them. In other words, an employee must recognize when their employer is attempting to interfere with their medical treatment. This often arises in a context of a Railroad Official’s attempt to influence emergency room treatment. It is well known among Railroad Supervisors that if an emergency room physician prescribes medication or restricts the Railroad employee for working for a period of time, the injury becomes FRA reportable. Because a significant portion of a Railroad Supervisor’s bonus is based upon minimizing FRA reportable injuries, they are highly motivated to influence the emergency room physician against prescribing medication or restricting work activities. However, the Railroad worker must enforce these rights by informing hospital personnel that no medical information is to be discussed with anyone from the Railroad. In other words, "the squeaky wheel gets the grease".

In addition, an injured employee must affirmatively request transportation to the nearest hospital if injured during the course of their employment. If this right is not requested, then the previously mentioned provisions of the Federal Rail Safety Whistleblower Act are not triggered. "The squeaky wheel gets the grease".

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