What is the Federal Rail Safety Act (“FRSA”)?

by Jon Jones, Associate
It is common for workers to fear retaliation from their employer when they report work-related injuries or safety concerns; refuse to perform dangerous work; follow a treating doctor’s order to remain off work after an injury; or even after speaking with attorneys and/or filing an on-duty injury claim. In fact, sometimes, employers do attempt to retaliate or intimidate against employees who engage in these activities. However, this type of retaliation against railroad workers is prohibited by a federal law called the Federal Rail Safety Act (the “FRSA” or Whistleblower law). When a railroad breaks this law, an employee is entitled to file a legal claim and recover compensatory and punitive damages. This article explains the basics of the Whistleblower law, railroad workers’ rights, and how those rights are enforced.
Federal Whistleblower Protections
A federal statute enacted under Title 49 of the United States Code is a law enacted by Congress as section 20109. It protects railroad workers who engage in specific safety-related activities. Specifically, it provides that a railroad “may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee” for engaging in these protected activities. The statute also prohibits a wide range of retaliatory conduct not specifically listed, such as intimidation or threats, reduction of hours, denial of overtime or promotion, or failure to hire or rehire.
What Is a Protected Activity?
Under the Whistleblower law, protected activities generally relate to railroad worker safety, following railroad safety laws and regulations, getting medical treatment, or participating in legal and investigatory processes. Some examples include:
  • Notifying the railroad of your own or a coworker’s work-related injury or illness;
  • Reporting a railroad about legitimate safety or security concerns;
  • Refusing to violate any federal law, rule, or regulation relating to railroad safety or security;
  • Refusing to perform work that presents an imminent danger of serious injury or death where there is no reasonable alternative;
  • Seeking medical treatment (like insisting on going to an emergency room instead of a corporate health clinic selected by the railroad) and following the orders and treatment plan of your doctor (like remaining off work);
  • Providing information about fraud, waste, or abuse of government funds connected to rail safety or security; or
  • Filing a complaint, causing a proceeding to be brought, cooperating with an investigation, or testifying in a proceeding under federal laws and regulations relating to railroad safety.
Enforcing Rights Under the FRSA

A railroad worker who believes he/she has been retaliated against for engaging in a protected activity may file a complaint with OSHA (Occupational Safety & Health Administration) no later than 180 days after the railroad worker knew or should have known about the adverse action taken by the railroad. If no complaint is filed within 180 days, the claim will be barred. The complaint and resulting investigation are handled by OSHA’s Office of Whistleblower Protection. The location of your local OSHA office can be found at here.

If OSHA does not issue a final decision within 210 days of filing the complaint, the railroad worker then has the option to file a lawsuit in federal court.

Because of the short 180-day window to file the initial OSHA complaint, if you believe you were or may have been retaliated against for engaging in a protected activity, it is important to contact an experienced attorney as soon as possible to get advice.

What Must a Worker Prove?
To win a Whistleblower claim, a worker must prove the following probably happened:
  1. The worker engaged in a protected activity;
  2. The railroad was aware the worker had engaged in that activity;
  3. The railroad took unfavorable or adverse action against the worker (i.e. discharge, demotion, suspension, reprimand, etc.); and
  4. The worker’s protected activity was a “contributing factor” to the railroad’s decision to take the adverse action (i.e. the protected activity, alone or in combination with other factors, affected the railroad’s decision).
If each of these elements is established, the railroad will be found liable unless it proves by clear and convincing evidence that it would have taken the same adverse action against the worker even if the worker had never engaged in a protected activity. “Clear and convincing” is a much higher standard of proof, however, than “preponderance of the evidence” and requires the railroad to prove its defense to a “reasonable certainty.”
What Remedies Are Available if you prove your claim?
The list of possible remedies for a worker that proves a case includes the following:
  • Removal of adverse disciplinary action from the employment record;
  • Reinstatement to old job with all seniority and benefits intact;
  • Payment of back wages with interest for the period spent not working due to the retaliation;
  • Damages for emotional distress;
  • Punitive damages, in certain circumstances, up to $250,000; and
  • Reasonable attorney’s fees and costs.
Conclusion
If you believe you were or may have been retaliated against for engaging in activities protected by the Whistleblower law, it is important to contact an experienced railroad attorney as soon as possible who can analyze the facts of your case and provide specific legal advice.
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