Railroad Whistleblower Protection
For too many years, railroads have used discrimination and threats of undeserved discipline to intimidate injured workers and other workers who report safety concerns. Suppressing accident information by any means, including intimidation & harassment is a federal crime.
The FRA and OSHA have recently increased their enforcement of these federal laws and declared to all railroads that 'Discipline for Reporting Must Stop.'
Our law firm PROUDLY represents injured railroad workers and railroaders who have been unjustly terminated, disciplined, threatened or discriminated against for reporting injuries or other safety concerns.
3 Questions to Ask Yourself if You Think You May Have a Railroad Whistleblower Complaint
1. Did you engage in protected activity?
Some protected activities covered by the Federal Railroad Safety Act (FRSA) and its derivative cases are:
- Reporting an unsafe condition (can be to company official or government official)
- Reporting a personal injury
- Hiring an attorney to handle your FELA injury claim
- Filing a whistleblower claim
- Good faith refusal to follow unsafe/illegal order from supervisor
- Asking for first aid/medical treatment for an on-the-job injury
- Following the treatment plan of your doctor, regardless of whether treatment plan is for an on-the-job or off-the-job injury/illness
2. Did the Company retaliate or take an adverse action against you?
Some common adverse actions taken by railroads against employees who have engaged in protected activity are:
- Termination or Laying Off (most common)
- Failure to promptly take a railroad worker with an on-the-job injury to the nearest hospital upon request
- Threat of a formal investigation
- Formal investigation
- Any attempt to talk an employee out of engaging in protected activity. For instance, 'Yes. You can report the spider bite you suffered while staying at the hotel we put you up in, but I just want you to know that there may be an investigation and sometimes people get fired.'
- Cutting off of benefits including wage continuation
- Denying overtime or promotion
- Reassignment affecting pay or hours
3. Was your protected activity a contributing factor in the Company's adverse action against you?
A protected activity is a "contributing factor" if it played any part whatsoever in the adverse action, even if it wasn't the primary, predominate or substantial factor.
3 Important Things to Know About Railroad Whistleblower Claims
For any railroader who thinks they may have a whistleblower claim, here are 3 important things to keep in mind:
1. Whistleblower claims must be filed within 180 days -
Many workers wait for final dismissal from the Public Law Board before consulting with us about their whistleblower claim. It's important to know that a disciplinary hearing and/or appeal to the Public Law Board does not constitute an "election of remedies" which bars a whistleblower complaint. In addition, since Public Law Board hearings and rulings can take up to 2 years, this means the statute of limitations of 180 days may be long expired if you wait for this process to play out before filing your whistleblower complaint.
2. Initial whistleblower claims are filed with the OSHA -
When a claim is filed, OSHA will be looking for several key points as they conduct their investigation. For more information, you can see OSHA's Whistleblower Investigations Manual.
An FELA attorney experienced with whistleblower claims, can help make sure that all key points the OSHA Investigator will be looking for are included in the initial claim, along with supporting facts.
If OSHA finds reasonable proof of actionable discrimination, they will then issue a finding which allows the worker to pursue a remedy outside of the Collective Bargaining Agreement that usually governs such claims. In most cases, this means the employee will then file a civil lawsuit against the railroad. Also, under the Federal Railroad Safety Act (FRSA), if there is no final order issued by the Secretary of Labor within 210 days after the filing of the complaint, then you may be able to file a civil action in the appropriate U.S. district court.
3. Keep records -
Railroads have historically assigned points and disciplined railroad workers who were hurt on the job through no fault of their own. They then later use these points or discipline history to deny promotions. If you are up for promotion or subject to any investigation or discipline hearing, it is important to maintain a record of any conversations, and/or written correspondence that occur. These may be useful later in your whistleblower claim.
If you need free advice on an unfair discipline matter, please feel free to call us toll free at 866-993-0001 .
Top Railroad Schemes that Violate Your Whistleblower Protections
1. Trumped up charges of dishonesty or late reporting of an injury -
The whistleblower protection law is designed to safeguard railroaders who report injuries or safety hazards. Congress enacted these protections because the carriers were using a climate of fear, intimidation, harassment, and retaliation to try and prevent workers from reporting unsafe conditions and injuries.
OSHA recently declared that alleged violations of employer rules regarding the timing or manner for reporting injuries 'deserve careful scrutiny' and that railroads 'cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all.'
Despite these new laws, railroads still try to fire workers who report injuries for alleged late reporting (i.e. less than 48 hours) or alleged "dishonesty" about how the injury occurred. Don't let this intimidate you. OSHA and judges are now consistently fining the railroads for these illegal tactics. Awards often exceed $250,000 and require reinstatement of the worker.
2. Failure to promptly take an injured worker to the nearest hospital immediately -
When a railroader suffers an on-duty injury and asks to go to a hospital, the railroad is required to promptly take the worker to the nearest hospital (49 U.S.C. 20109(c)(1)). Usually, the company will try to steer the employee to a company doctor or nurse. Why? Because the railroad knows independent E.R. doctors often prescribe medication or give an off work slip making the injury FRA reportable. "Immediately" means the company cannot delay transportation to the nearest hospital until after you have given a tape recorded statement to claims. If you suffer an on-duty injury, tell the railroad you want to go to the nearest hospital immediately. It's your right under the Law.
3. Interfering with an injured worker's medical care -
A railroad is prohibited from interfering with an injured worker's medical care (49 U.S.C. 20109(c)(1)-(2)). When an injured worker insists on going to the hospital for an on-duty injury, a railroad's medical department will often try to contact the emergency room and request that the injured worker be treated with only non-prescription medication, and that he be released to work "light duty." This is against the law and you should file a complaint if you suspect the railroad is using these tactics.
Also, a railroad cannot order you to violate your doctor's orders, regardless of whether the injury or illness was suffered on-duty or off-duty. The railroad medical department will often send a letter stating it finds no "medical barriers" to you working and then ordering you to mark-up despite your doctor ordering you off work. Such orders are forbidden by OSHA whistleblower protections. The railroad may also try to order the injured worker to a medical evaluation by its company doctor. Again, this is against the law and should be reported.
4. Alleged violation of safety rules-
Railroads often accuse that a railroad worker's injury resulted from the the violation of a safety rule by the employee. In these cases, careful investigation is needed. Does the railroad monitor for compliance with the work rule even if no one has been injured? Does the railroad consistently impose similar discipline when there is no injury reported? Also, vague rules such as 'maintain situational awareness' or 'work carefully' are red flags that allow for Monday morning quarterbacking and discrimination after a railroad injury has occurred.
5. Safety incentive programs-
Many railroad safety incentive programs discourage railroad workers from reporting on the job injuries. If an employee of a railroad with a safety incentive program reports an injury, the employee or the employee's work group could be disqualified from receiving the incentive. Instead railroads should incentivize pro-active safety measures such as safety training and identifying hazards before they cause a railroad injury.
- Medical Delay Award!
- Fired Railroader Reinstated!
- Shortline Violates FRSA and Pays!
- Unfair Discipline by Union Pacific Expunged!
- Discipline for Reporting Must Stop!- Joint FRA-OSHA Letter to Railroads
- OSHA Fact Sheet - Whistleblower Protection for Railroaders
- FRA-OSHA Memorandum of Understanding
- AAR Amicus Curiae Brief
- OSHA Memo 3/12/12
- OSHA Whistleblower Investigation Manual
- 49 U.S.C. 20109
- How to Fill Out an Accident Report
- How to Give a Statement to the Railroad Claim Agent
- 7 Vital Tips for an Injured Railroad Worker
- Injured Railroad Worker Protections: How the FRSA Protects You When You Report an Injury or Safety Hazard