FELA/Railroad Employer Retaliation
Railroaders have long feared the railroad will fire them or put a target on their back if they report on-duty injuries. Congress acted in 2007 to prohibit this. The 2007 amendments to the Federal Rail Safety Act gave OSHA authority to investigate and decide such claims. In a series of recent decisions OSHA has been making it clear to railroads and employees that it takes this new statute very seriously. You should contact Paoli & Leisher at 406-542-3330 or 800-332-4308 if you even suspect retaliation has occurred.
Under the 2007 legislation, it is illegal for the railroad to “retaliate” against you for
- Providing information about railroad safety, or gross fraud, waste or abuse of federal or public funds, to railroad safety or security personnel or to federal or state or Congressional authorities or to a railroad supervisor
- Refusing to violate any federal law, rule, regulation relating to railroad safety or security
- Filing a retaliation complaint and certain other kinds of complaints
- Notifying the railroad or the government of a work-related injury or work-related illness
- Cooperating with a federal investigation of railroad safety or security
- Furnishing accident information to federal or state authorities
- Accurately reporting hours of duty
- Making a good faith report of, or refusing to work when confronted by, a hazardous condition that presents imminent danger of death or serious injury
- Requesting medical treatment
- Following the treatment plan of your own treating physician.
- Any other type of discrimination or adverse employment action including, in most circumstances, formal company investigation.
This type of claim has a very short statute of limitations of 180 days. Because the statute of limitations is so short, there is no point trying to memorize in advance what may or may not be covered or what may or may not constitute illegal retaliation. Just call Paoli & Leisher at 406-542-3330 or 800-332-4308 immediately.
A railroader who prevails in one of these claims can recover reinstatement with seniority, back-pay plus interest, “compensatory damages” (mainly emotional distress), litigation costs, expert witness fees, attorneys’ fees, and/or punitive damages not to exceed $250,000.
A railroader who believes he or she is the victim of illegal retaliation must file a complaint with the Occupational Safety and Health Administration (“OSHA”). Congress assigned this investigative role to OSHA rather than the Federal Railroad Administration because OSHA already had substantial experience investigating and deciding retaliation claims in other industries. The nearest OSHA field office takes the complaint over the telephone. The date of the initial phone call establishes the filing date for statute of limitations purposes. After investigation, OSHA decides whether there is “probable cause” to believe the employee’s “protected activity” was a “contributing factor” in the action the railroad has taken against the employee. If either side is dissatisfied with the initial probable-cause decision, they can request a formal administrative hearing before a U.S. Department of Labor Administrative Law Judge. The losing party can then appeal to the Department of Labor’s Administrative Review Board.
On March 12, 2012, Deputy Assistant Secretary Richard Fairfax of the U.S. Department of Labor issued a memo to OSHA investigators about how OSHA intends to interpret and enforce the retaliation statutes. The Fairfax memo instructs OSHA personnel that:
- Any railroad policy of noticing up a formal investigation of every employee who reports an injury, regardless of fault, probably violates the whistleblower statute.
- Railroad discipline imposed for alleged “late” reporting of an on-duty personal injury could easily be a pretext for illegal retaliation and OSHA will subject such cases to “careful scrutiny.”
- Railroad discipline imposed for alleged violation of safety rules can also easily be a pretext for illegal retaliation. OSHA will look carefully at whether the rule is specific or general and vague (“maintain situational awareness”/”work carefully”) and will consider whether the employer applies the same rule consistently to employees who violate it without suffering injury.
- Railroad-sponsored safety incentive programs that reward employees or groups of employees for being “injury-free” may, depending on the terms of the program, violate the retaliation statute.
The retaliation claim is an important tool for employees who suffer workplace injury and for employees who seek to make the workplace safer by reporting legitimate safety issues. If you suffer adverse employment action after engaging in any of the protected activity described in this memo, you may have a claim but there will also be a short statute of limitations running on that claim. You have nothing to lose by contacting Paoli & Leisher to discuss the matter further.