Has Your Railroad Employer Impermissibly Punished or Retaliated Against You?

What To Do If You Think You May Be a Whistleblower

by Jerry Schlichter, Managing Partner

In the first issue of our Railroad Injury Newsletter, we introduced you to the Federal Rail Safety Act (“FRSA”), which works to protect railroad workers from retaliatory or discriminatory action in response to performing various “protected activities,” including but not limited to: reporting a hazardous safety condition, reporting work-related injuries, refusing to perform dangerous work, following a treating doctor’s order to remain off of work following an injury, or even speaking with attorneys and/or filing an on-duty injury claim. We also provided information regarding how to enforce your rights under the FSRA. In this article, we will respond to frequently asked questions related to this topic.

I believe that I have been retaliated against by my employer for engaging in a protected activity. In other words, I believe I may be a whistleblower. What should I do?

Act immediately. Time is of the essence at this juncture, so we encourage you not to wait. A railroad worker who believes that he/she/they have been retaliated against for engaging in a protected activity should file a complaint with the Occupational Safety & Health Administration (“OSHA”) no later than 180 days after the railroad worker knew or should have known about the adverse action taken by the railroad. Further, such adverse action must have been taken based in whole or in part on the protected activity. We urge you to find an experienced railroad injury attorney as soon as possible to help you analyze your claim and potentially file a complaint. Our nationally recognized Railroad Injury lawyers are, as always, ready to assist you. The location of your local OSHA office can be found here.

I thought that the situation might get better on its own, but it has only become worse. Now, it has been 181 days. What can I do?

Unfortunately, if you did not file a complaint within 180 days after you knew or should have known about the adverse action taken by the railroad, your claim will be barred. That is why it is so important that you act as quickly as possible.

Even though I have missed the 180-day window to file a complaint after my disciplinary trial/hearing, my formal discipline was only just imposed last week. Does that change anything?

Yes! If there are multiple adverse actions involved, the 180-day window restarts after each individual adverse action. OSHA considers the first notice of a disciplinary charge to be an adverse action initiating the window. A disciplinary trial and the imposition of formal discipline will open their own 180-day windows. That said, we encourage you to file a complaint as early as possible, to capture all subsequent disciplinary actions.

I filed my complaint with OSHA. What happens now?

OSHA will appoint an investigator who will look into your claim. They may seek a formal written response from the railroad, interview you or your coworkers, and request documents from you and/or the railroad to support your claim. This is all part of a normal investigation, so do not feel intimidated. Eventually, OSHA will issue a Finding, either against you (dismissing your claim) or the railroad.

How long will that take? It’s been a year and a half since I filed my complaint with OSHA, and I have heard nothing.

We recommend you contact an experienced railroad injury attorney immediately. If OSHA does not issue a final decision within 210 days of you filing your complaint, you now have the option to file a lawsuit in federal district court for a jury trial on all the issues, including the amount of punitive damages.

OSHA issued a Finding, and it’s against the railroad! What happens now?

The railroad has 30 days to either comply with the finding or file an Objection.

OSHA issued a finding against me! I want to file an Objection. Can I do that? If so, what happens next?

Yes! Once you file an Objection, the case will proceed to a hearing before a federal administrative law judge (“ALJ”).

What if the ALJ also rules against me?

It’s not over yet! You can appeal from an ALJ decision directly to the federal Administrative Rule Board (ARB) in Washington DC. After that, you can continue the appeals process to the United States Circuit Court of Appeals and then to the US Supreme Court (if a petition for a writ of certiorari is granted). We note that the railroad can also follow the same appeal path if they object to any ruling against them along the way.

In conclusion, if you believe that you may have been retaliated against for engaging in activities protected by the FRSA Whistleblower law, we strongly encourage you to contact our nationally-recognized Railroad Injury lawyers as soon as possible (railroad@uselaws.com | 800-873-5297). Our team can help you analyze the unique facts of your case and provide specific legal advice.

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