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Railroad Injury Blog

How to Prove an FRSA Whistleblower Violation without a Smoking Gun

Friday, December 14, 2018

You have been suspended from work or terminated, and you know it’s because you reported that injury, or because you put in one too many safety reports and trainmasters were targeting you. But how do you prove it when there’s no smoking gun – no statement from management that you’re being fired for reporting your injury or safety complaint? Courts recognize that smoking gun evidence, conclusive evidence of wrongdoing, is typically unavailable cause employers are rarely so cooperative as to include a notation in your file that your discipline is for a reason expressly forbidden by law. Obviously, it is very infrequent that a railroad admits not just to possessing an impermissible motive, but also to acting on it. So proving you were terminated for making an injury or safety report is done most often through circumstantial evidence.

Circumstantial evidence is not only sufficient, but may even be more certain, or more persuasive. Circumstantial evidence that your protected activity, such as reporting injuries or safety complaints, contributed to your discipline may include several factors. First is temporal proximity. If the railroad charges you with rules violations shortly after you report your injury, that indicates the reason for the discipline was the injury report. Second are indications of pretext. When the railroad is vague about what you did to violate the rules, or its witnesses give contradicting statements about what occurred, that shows the reason for the discipline is not what the railroad is claiming. Third is an inconsistent application of the railroad’s policies. If the hammer is coming down hard on you, and a co-worker who committed the same violation a year ago but never reported a safety violation got off easy, that indicates the reason for your discipline was your safety report. Fourth is a railroad’s shifting explanations for its actions. When the railroad first charges you with one violation and then changes its mind to charge you with something else, that indicates that neither of the reasons the railroad gave is the real reason for the discipline.

Fifth is antagonism or hostility toward your protected activity. If your trainmaster tells you, “Don’t bring that BS to me,” when you make a safety complaint, or tells you that you should say your injury happened at home, it shows that any discipline you receive is related to what management was really upset about – your protected activity. Sixth is the falsity of the railroad’s explanation for the discipline. If you can prove there is no way you committed the rule violation you are charged with, and the railroad knew it, then it’s clear the railroad was really motivated by your record of safety complaints. Finally, are changes in the railroad’s attitude towards you after you engaged in protected activity. When you make an injury report, and the trainmaster who you used to be friendly with now won’t look you in the eye because you messed up his numbers for the year, it tends to show that the discipline you received was for reporting that injury.

Proving you were discriminated against because of your protected activity under the FRSA is obviously a tricky business. That is why you need experienced FRSA attorneys with knowledge of railroads and their practices to represent you when you are suspended or terminated from work, and you know it was for an unlawful reason.

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 and download our App for Railroad Employees (search “Matt Darby” and “railroad” in App Store).You can also reach us at 800-248-FELA.

Why We Need The FELA

Friday, June 10, 2016

I recently had the pleasure of speaking at two (2) Union Meetings, one in West Seneca, New York and the other in Altoona, Pennsylvania. One of the themes of the presentation dealt with the importance of the Federal Employers’ Liability Act (FELA). We had some really good discussions and I thought it would be a good topic for a blog, so here I go. In contrast to State Workers’ Compensation Laws, the FELA requires that an injured employee prove that he or she did not have a reasonably safe place in which to work in order to recover any damages, including lost wages. In other words, there must be a showing that the railroad was negligent. At the meetings, it was clear that there was a question as to why the FELA is necessary.

The History and Purpose of FELA

In order to understand this very astute question, it is important for us to understand the historical purpose of the FELA. All railroad employees recognize that railroad work is dangerous. At the time that the FELA was passed in 1908, 4,500 railroad workers died and nearly 88,000 were injured performing railroad work. In response to the carnage taking place along the nation’s tracks, Congress enacted the FELA. The purpose of the FELA was appropriately summarized by Supreme Court Justice William O. Douglas when he said “the Federal Employers’ Liability Act was designed to put on the railroad industry some of the costs of the legs, arms, eyes and lives which it consumed in its operation”. Therefore, the FELA was designed to achieve two (2) goals. First, it was designed to provide injured railroad workers or their surviving family members fair compensation for injuries and deaths sustained while working on the railroad. Of equal importance, the FELA creates a financial incentive for railroads to improve safety. The New York Times published a Pulitzer Prize – winning expose in 2005 which confirmed that railroad work is still dangerous. The New York Times concluded that left to their own devices, railroads skimp on safety and cover up wrong doing. This is hardly a secret to those working for a railroad!

The Whistleblower Provision of FELA

The culture found on railroads was further evidenced by Congress’ decision to pass the 2007 Amendments to the Federal Rail Safety Act, which included a very strong Whistleblower provision. Obviously, Congress felt that railroads still needed an additional incentive to create a safe place for employees’ to work as well as a law for compensating railroad employees who report unsafe conditions. Again, an attempt to create a financial incentive for railroads to do the right thing.

Therefore, in answer to the question posed at my two (2) recent meetings, the reason that the FELA requires a showing of negligence is that it is an important component of railroad safety. Left to their own devices, railroads would simply ignore safety and treat their employees like any other piece of equipment; they would simply get rid of it when it was no longer profitable.

By Matt Darby

Beware Of The Railroad’s Release

Monday, April 25, 2016

I was recently working on a Federal Rail Safety Act (FRSA) Whistleblower Case involving an argument by the Railroad that my client’s claim had been released. It reminded me that the Railroads as a whole are becoming much more aggressive with their Releases. While it is not an issue when a railroad employee with a Federal Employer’s Liability Act (FELA) claim or Whistleblower Claim arising under the FRSA is represented by counsel, often times injured railroad employees will settle smaller cases on their own. I always encourage railroaders to contact my office, even if I am not directly involved in the case, to get advice as to how to proceed if the claim is relatively small. I always caution those individuals to be aware of what the railroad will try to include in its Release.

What Is a Release?

A Release is essentially the legal document that memorializes the agreement between the employee and the railroad. It will contain the monetary amount of the settlement, which is accepted by the employee in exchange for “releasing” certain claims. Railroad employees naturally assume that they are only releasing any claim related to the particular injury. However, railroads are increasingly including within the Release claims and potential claims that the employee may not be aware of. For example, the railroads will seek to include any known prior claim, such as any time claims arising under the Railway Labor Act, other injuries and potential cumulative trauma disorder claims.

What About My Unknown Injuries?

It is particularly egregious when the railroad attempts to have the employee release unknown claims. The law is somewhat unclear on this issue. Some cases hold that an employee can only release claims that he or she is aware of. In other words, if an employee is aware that they have what may be a cumulative trauma knee injury, that may be released if the language of the document is broad enough. More troublesome, however, are the cases that hold that an employee may release injuries that are unknown. In those cases, the question is whether the employee is releasing injuries that may come about from known risks. This is much broader than the known injury claim. So, for example, if an employee injures his hand and is out of work for one month, and settles the case directly with the Claims Agent, and later develops cancer as a result of exposure to diesel exhaust that Release may bar the cancer claim if it included reference to risks associated with diesel exhaust.

It Could Happen To You

I decided to blog about this issue based upon a case I am currently working on. My client was injured attempting to throw a defective and out of adjustment railroad switch. He lost minimal time from work and settled the FELA injury case one week after the incident. The next day, the employee received a charge letter claiming that he had improperly thrown the switch. After an investigation, the employee was assessed thirty (30) days off of work. Critically, this was step two with a railroad that had a three step termination policy. Several months later, the employee did admittedly violate a rule which resulted in a derailment. However, because of the fallacious second step charge, the employee was terminated. We immediately filed an FRSA Whistleblower Case and the railroad contends that the FELA Release, which did included language releasing any FRSA cases, barred the FRSA case. We, of course, are fighting this issue vigorously. The outcome is yet to be determined.

Before You Sign a Release…

Accordingly a word of caution – please confer with experienced railroad counsel prior to signing any Release. It is important to fully understand what you are giving up to make sure that the terms are acceptable.

By Matt Darby

Is This Any Way To Run A Railroad? Norfolk Southern Does It Again

Friday, August 31, 2012

Once again Norfolk Southern has been found to be in violation of the whistleblower protection provisions of this FRSA. This is starting to sound like a stuck record (for those of you who remember records).

On August 28, 2012, the Occupational Safety and Health Administration (OSHA) issued a news release indicating that it had ordered Norfolk Southern Railway Company to pay two Railroaders $932,070.46 in damages, including $387,813.75 in punitive damages.

Railroader No. 1 suffered an on-the-job shoulder injury that he reported to the Railroad. As usual, Norfolk Southern alleged that he had filed a false injury report and he was fired. He was subsequently reinstated by the special Board of Adjustments. OSHA ordered Norfolk Southern to pay the Railroader $581,438.00, including compensatory damages for pain and suffering, $150,000.00 in punitive damages, $55,000.00 in attorney’s fees and $26,438.11 in back wages and benefits. Importantly, OSHA ordered Norfolk Southern to reinstate the Railroader to his proper seniority level.

Railroader No. 2 also suffered an on-the-job injury that he reported to the Railroad. He, like Railroader No. 1, was charged with making a false statement regarding his injuries. He was also subsequently discharged. The news release indicates that during the OSHA investigation it was determined that the Railroader’s injuries were not only real, but they have “caused severe medical problems involving his back, neck and shoulders, which restrict his ability to sit, stand, walk and operated machinery.” OSHA ordered Norfolk Southern to reinstate the Railroader once he is medically released to return to work. Norfolk Southern was also ordered to pay damages in the amount $350,632.35, including $150,000.00 in compensatory damages and punitive damages in the amount of $150,000.00. Attorney’s fees and medical expenses were also awarded.

Dr. David Michaels, OSHA’s Assistant Secretary of Labor for Occupational Safety and Health, was quoted as saying “Firing workers for reporting an injury is not only illegal, it endangers other workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury or possible future prevention can occur” and “Railroad workers must be able to report work-related injuries without fear of retaliation. The Labor Department’s responsibility is to protect all employees, including those in the railroad industry, from retaliation for exercising these basis worker rights. Employers who break the law will be held accountable.” So far, OSHA, at least with regard to Norfolk Southern, has been true to its word.

OSHA’s press release can be found here.

A link to a news article in the Virginian-Pilot is here.

By Matt Darby

OSHA Blasts Norfolk Southern Again For Whistleblower Violation

Friday, August 17, 2012

It’s getting hard to keep track of the number of times Norfolk Southern has been found to be in violation of the whistleblower protection provisions of the FRSA but it’s happened again. On August 8, 2012, the Occupational Safety and Health Administration (OSHA) issued a news release indicating that it had ordered Norfolk Southern Railway Company to pay a Railroader more than $300,000.00 in damages, including $200,000.00 in punitive damages.

The Railroader suffered an on-the-job head injury that he reported to the Railroad. He was subsequently charged with falsifying that injury and fired. The news report indicated that “OSHA found that the railroad’s investigative hearing was severely flawed and orchestrated to intentionally support management’s decision to terminate the employee.” No real surprise there.

Cindy A. Coe, OSHA’s regional administrator in Atlanta, was quoted as saying “Railroad workers throughout this country have the right to report an injury without fear of retaliation” and “The Department of Labor will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights, and employers found in violation will be held accountable.”

OSHA’s press release can be found here.

By Matt Darby

OSHA Orders $25,000 In Puntive Damages For Illegal Suspension

Friday, July 27, 2012

On July 25, 2012, the Occupational Safety and Health Administration (OSHA) issued a news release indicating that it had ordered Union Pacific Railroad Company to pay a Railroader $25,000.00 in punitive damages for imposing a 10 day suspension for reporting an on-the-job injury. The Railroader suffered a serious injury that included the loss of two teeth and facial lacerations when coupled cars came apart as they were being moved in the yard. OSHA determined that the Railroad imposed the discipline even though the Railroader was not at fault. Charles Adkins, OSHA’s regional adminstrator in Kansas City stated that “While OSHA is best known for ensuring the safety and health of employees, it is also a whistleblower protection agency.”

OSHA’s press release can be found here.

By Matt Darby

OSHA Orders Midwest Railroad To Pay Three Railroaders $650,000 In Back Wages And Damages

Thursday, July 19, 2012

On July 19, 2012, the Occupational Safety and Health Administration (OSHA) issued a news release indicating that it had ordered the Illinois and Central Railroad and the Chicago and Fort Wayne & Eastern Railroad to pay over $650,000.00 to three Railroaders who were discriminated against in violation of the FRSA.

The first case involved an Illinois Central Railroad Conductor who sustained a job related injury who was subsequently fired for alleged rules violations. OSHA determined that he was terminated in reprisal for reporting the work related injury. He was awarded back wages, vacation pay, payment of his medical bills, attorney’s fees and compensatory and punitive damages.

The second case involved an Illinois Central Railroad Carman who sustained a job related injury who was fired for allegedly violating the company’s injury reporting policy. OSHA determined that the injury was properly reported and ordered the Railroad to pay him back wages, compensatory damages and punitive damages.

The third case involved a Chicago and Fort Wayne & Eastern Railroad Conductor who was fired for raising safety concerns while serving as his role as local chairman for the union. The Railroad alleged that he had been fired for failing to pass an engineer certification test. OSHA ordered the Railroad to provide the Railroader with training and another opportunity to pass the test. Upon him passing the test, he was to then be reinstated. The Railroad was also ordered to pay back wages, compensatory damages and punitive damages.

Dr. David Michaels, assistant secretary of labor for occupational safety and health indicated in the news release that “It is critically important that railroad employees in theMidwestand across the nation know that OSHA intends to defend the rights of workers who report injuries and safety concerns.” He also stated “We will use the full force of the law to make sure that workers who are retaliated against for reporting health and safety concerns are made whole.”

A copy of the OSHA news release can be found here.

A link to a Chicago Tribune news article can be found here.

By Matt Darby

OSHA And FRA Join Forces To Provide Whistleblower Protection

Tuesday, July 17, 2012

On July 16, 2012, the Occupational Safety and Health Administration (OSHA) announced that it has signed an agreement with the Federal Rail Administration (FRA) to “facilitate coordination and cooperation between agencies regarding enforcement of the Federal Railroad Safety Act’s whistleblower provision.” OSHA’s news release regarding the agreement went on to state that “The safety of railroad employees depends on workers’ ability to report injuries, incidents and hazards without fear of retaliation", said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “OSHA welcomes the opportunity to work with the FRA to protect these rights and make our nation’s railroads a safer place to work”.

Highlighting the Railroads’ widespread and ongoing acts of discrimination, the press release indicated that whistleblower complaints were on the rise and that “Between 2007 and 2012, OSHA received more than 900 whistleblower complaints under the FRSA, and almost 63 percent involved an allegation that a worker was retaliated against for reporting an on-the-job injury.”

The agreement provides that the FRA will refer whistleblower complainants to OSHA. In return, OSHA will provide the FRA with copies of the complaints it receives and findings and preliminary orders that it issues. In addition, OSHA and the FRA “will jointly develop training to assist FRA enforcement staff in recognizing complaints of retaliation, and to OSHA enforcement staff in recognizing potential violations of railroad safety regulations revealed during whistleblower investigations.” The Memorandum of Agreement (MOA) between the two states that the “FRA will also maintain a database of the complaints it receives from OSHA to monitor potential safety problem areas and issues in which FRA may be able to assist OSHA.”

It seems quite clear that despite OSHA’s ongoing work to eliminate discrimination under the FRSA, it needed a strong partner in those efforts. Hopefully, the agreement to share information and resources between OSHA and the FRA will make the Railroads think twice before disciplining its workers for illegal reasons.

A copy of the OSHA news release and Memorandum of Agreement can be found here.

By Matt Darby

OSHA Affirms Whistleblower Protection For Non-Complainant Witnesses

Saturday, June 23, 2012

On June 1, 2012, the Occupational Safety and Health Administration (OSHA) made it clear that the identities of non-complainant individuals who cooperate in the Whistleblower complaint process shall remain confidential. In a letter to the Vice President and General Counsel of the Burlington Northern Santa Fe Railroad, Charles W. Shewmake, David Michaels, Ph.D., Assistant Secretary for OSHA, indicated as follows:

“. . . the FRSA’s governing regulations explicitly state that “[i]nvestigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant” 29 C.F.R. 1982.104(d). Moreover, OSHA’s Whistleblower Investigations Manual (2011), available here, expressly provides for the confidentiality of non-management witness interviews and states that such interviews are to be conducted in private.”

More importantly, Dr. Michaels made it clear that non-complainant witnesses are covered by Whistleblower protection once they cooperate in an investigation. Regarding that protection, he stated in his letter as follows:

“We also wish to remind you that it is violation of the employee protections of FRSA to discharge, demote, suspend, reprimand, or in any other way retaliate against an employee who provides information to OSHA or otherwise assists OSHA in an investigation of a FRSA whistleblower complaint. OSHA takes allegations of such retaliation extremely seriously and will not tolerate retaliation against witnesses who cooperate in FRSA whistleblower protections.”

By Matt Darby

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