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

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.

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