Railroad Retaliation FRSA
The Federal Railroad Safety Act (FRSA) is a railroad whistleblower statute enacted in 2007 that protects railroad workers from harassment when reporting an injury at work or reporting some safety concern.
Under this whistleblower statute, railroad workers are protected against the company trying to harass them, blacklist them, or in any other way discriminate or discipline a railroad worker who engages in certain protected activities. Those protected activities include: reporting a personal injury, refusing to violate any type of safety rule or law, filing a complaint about a safety violation, refusing to work when faced with an unsafe condition, or providing information in an investigation regarding a breach of a particular safety law or rule regarding railroad safety issues.
File A Retaliation Claim
Under the whistleblower statute, a railroad worker only has 180 days from the railroad’s adverse action to file an administrative claim with OSHA.
Suppose your railroad sends you a letter charging you with a rule violation after you’ve had a personal injury, reported a safety violation, or failed to return to work because your doctor is telling you that you must be off. In that case, the adverse action is the discipline or charge letter, which is when your time starts to “toll.” Toll means the clock is ticking, and you only have 180 days (6 months) to file an administrative claim with OSHA. Suppose you are terminated after the investigation into your “charge” by the railroad. In that case, this constitutes another adverse action, and your time begins to toll from the date of the termination letter. Again, once that time starts to run, you only have 180 days from that moment to bring a claim.
So many potential clients come to us after the statute of limitations has expired and their rights have run out. It’s essential to file your administrative claim with OSHA as soon as possible. It is even more important to speak with a railroad attorney who understands the whistleblower laws and can help you file your claim. Download OSHA’s Whistleblower Fact Sheet.
Is My Railroad Retaliating Against Me?
What are “protected activities” under the FRSA?
These are the protected activities that fall under the protection of whistleblower law:
- Injuries – notifying the railroad of your work-related injury or a co-worker’s work injury
- Safety concerns – reporting hazardous safety or security condition; refusing to violate federal law relating to rail safety; refusing to use or report unsafe railroad equipment, tracks, or structures.
- Medical treatment – work-related injury, the railroad can not deny, delay or interfere with medical treatment; for a work-related medical condition, the railroad cannot discipline an employee for following the treating doctor’s orders or treatment plan.
- Fraud or waste of public funds – providing information regarding the fraud, waste, or abuse of government funds connected to rail safety or security.
Am I protected from railroad retaliation?
Yes. All railroad workers are protected by the Federal Railroad Safety Act (FRSA). This Act was enacted to promote safety in all areas of railroad operations and to ensure that railroad employees engaging in certain protected activities could do so without the fear or threat of discrimination or retaliation from their railroad employer.
Is racial discrimination part of railroad whistleblower protection?
No, the whistleblower statute protects railroad workers in areas of safety. The Equal Employment Opportunity Commission (EEOC) protects employees against racial discrimination.
Is My Charge Letter Considered Retaliation?
Being charged with a rule violation and being brought into investigation are considered retaliation if the railroad is retaliating against you for a protected activity covered under the whistleblower statute. Again, those protected activities revolve around safety. All of these instances are protected activities:
- If you are refusing to violate a safety law or rule,
- If you are filing a complaint regarding a safety violation,
- If you are reporting a personal injury,
- If you are providing information regarding an injury to a coworker or yourself to the FRA,
- If you are reporting an unsafe working conditions.
Suppose you are engaging in these activities, and the railroad charges you with a rule violation. In that case, it is essential to speak with an experienced railroad attorney to determine if that rule violation is connected to the fact that you are reporting safety concerns. The rule violation may not have anything to do with the protected activity, but it is the railroad’s way of harassing and disciplining railroaders for reporting safety concerns.
It is essential once you receive a charge letter to reach out to an experienced railroad attorney to determine the facts surrounding that violation and that charge to decide whether it is a retaliatory act by the railroad.
Am I Protected If I File
A Safety Grievance
With My Union?
Yes. Filing a safety grievance with the Union and reporting any unsafe working conditions is a protected activity under the FRSA whistleblower statute. Since reporting unsafe working conditions is a protected activity, if the railroad retaliates against you because you’ve reported a hazardous condition, you have a right to file a claim with OSHA within 180 days of the railroad retaliating.
Retaliation takes many forms:
- The railroad charging you with rule violations,
- The railroad is watching and testing you more than your coworkers,
- Being placed on a type of watch list or high-risk employee list, or
- Other forms of blocklisting you because you’ve reported safety issues.
The critical thing to remember is that file a safety grievance with your Union. While your Union is pursuing that safety grievance for you, you can also bring a claim under the OSHA whistleblower statute if the railroad retaliates. It is a common misconception that a railroader who has been disciplined or fired must wait until his safety grievance process has been decided with the Union before he/she can pursue a whistleblower case. This is incorrect and can cost railroaders their ability to bring a claim under the whistleblower statute because of the short timeframe of 180 days from the date that you know of the discipline or discrimination or retaliation.
Documenting A Retaliation Claim
For a whistleblower claim under the Federal Rail Safety Act (FRSA), you have ONLY 180 days from the time of the adverse action to bring an administrative claim with OSHA, the Occupational Safety and Health Administration.
For a whistleblower claim under the FRSA, you have a short window of time to file a claim with OSHA. You only have 180 days from when the railroader knew or should have known that the railroad carrier decided to take adverse action against them.
Because of this short 180-day window, it is crucial if you believe the railroad has discriminated or retaliated against you for reporting an injury or any of the protected activities listed on our website that you call as soon as possible to determine if you have a claim to file with OSHA.
Am I A Whistleblower? What Does That Mean?
A whistleblower in the railroad industry is an employee aware of his right to have a safe work environment and knows what to do to make the railroad responsible for failing to provide that safety.
Have you ever been punished, intimidated, charged, fired, or threatened for one of the following?
• Reporting a safety concern
• Reporting an injury
• Following the doctor’s order
If you answered yes to any of the above questions, you might be a whistleblower eligible to file a claim to protect your rights as a Railroader.
What are the remedies under the whistleblower law?
Under the whistleblower statute, different remedies are available for employees when the railroad violates the whistleblower law. The FRSA whistleblower law has the power to force the railroad to give you a “make-whole remedy,” which makes the railroad potentially responsible for doing the following:
- Reinstate you with all your seniority rights;
- Pay your back wages with interest;
- Pay all your economic losses;
- Pay emotional distress damages;
- Pay attorney’s fees and costs;
- Pay front pay if the Court finds that it is not in your best interest to return to your former position;
- Pay punitive damages up to $250,000; and
- Expunge your discipline.
Can My Union Representative Work
With My FELA Attorney?
Absolutely Yes. It is beneficial for your FELA attorney to work with your union, especially if you filed a safety grievance and the union is pursuing specific claims for you under the Railway Labor Act. It’s beneficial for your attorney to be able to talk to your union representative that will be representing you in your investigation hearing so that if some issues need to be addressed that deal with your whistleblower claim, your union and your attorney can collaborate on those issues and how best to present those at an investigation.
Do I need a lawyer that specializes in railroad whistleblower laws?
Yes. You should contact an attorney if you:
- Reported a safety issue or personal injury and was given a letter of reprimand in your file,
- Were told not to report the personal injury,
- Are being charged with rule violations repeatedly to pad your file,
- Experience harassment from your employer or others after having a personal injury,
- Are being told you cannot take a return-to-work physical after your doctor has released you to return to full duty;
- Are being threatened with a charge of absenteeism if you don’t return to work when your doctor has not released you to full duty;
- You were terminated after reporting a safety issue, or
- You were not allowed to bid for specific jobs or demoted after reporting a safety issue or unsafe working condition.
Protecting Yourself To Protect Others: Solidarity And How It Helps
Solidarity is based on the principle that we are willing to put ourselves at risk to protect each other. Protecting your fellow coworkers by reporting safety concerns and unsafe working conditions, supporting other railroad workers who have been retaliated against by participating in OSHA investigations, and participating in carrier investigations promotes the protection of yourself and others. It is essential to know that under the whistleblower statute, you are also protected if you are helping OSHA in its investigation of a retaliation claim. That means if the railroad retaliates against you for supporting your coworker in his/her retaliation claim, you have a right to also bring a claim with OSHA.
Many railroaders worry about the effects of being honest about safety conditions with OSHA, reporting safety concerns, and helping other coworkers when they are retaliated against. We often get questions about railroaders’ protection when they are standing together to protect another coworker. It’s important to know that those protections from OSHA extend to anyone actively participating in an investigation and that you are protected if the railroad suddenly turns its retaliatory actions against you.
Frequently Asked Questions
A whistleblower in the railroad industry is an employee who is aware of his/her right to have a safe work environment and who knows what to do to make the railroad responsible for failing to provide that safety.
These are the protected activities that fall under the protection of whistleblower law:
- Injuries – notifying the railroad of your own work-related injury or a co-worker’s work injury
- Safety concerns – reporting hazardous safety or security condition; refusing to violate federal law relating to rail safety; refusing to use or reporting the use of unsafe railroad equipment, tracks or structures.
- Medical treatment – work-related injury, the railroad can not deny, delay or interfere with medical treatment; for a work related medical condition, the railroad cannot discipline an employee for following the treating doctor’s orders or treatment plan.
- Fraud or waste of public funds – providing information regarding the fraud, waste or abuse of government funds connected to rail safety or security.
Under the whistleblower statute, there are different remedies available for the employee when the railroad violates the whistleblower law. The FRSA whistleblower law has the power to force the railroad to give you a “make-whole remedy” which makes the railroad potentially responsible to do the following:
- Reinstate you with all your seniority rights;
- Pay your back wages with interest;
- Pay all your economic losses;
- Pay emotional distress damages;
- Pay attorney’s fees and costs’
- Pay front pay if the Court finds that it is not in your best interest to return to your former position; and
- Pay punitive damages up to $250,000.
If your railroad sends you a letter charging you with a rule violation after you’ve had a personal injury, or reported a safety violation, or failed to return to work because your doctor is telling you that you need to be off, the adverse action is the discipline or charge letter, and that is when your time starts to “toll.” Toll means that the clock is ticking and you only have 180 days (6 months) to file an administrative claim with OSHA. If you are then terminated after the investigation into your “charge” by the railroad, this constitutes another adverse action and your time begins to toll from the date of the termination letter. Again, once that time begins to run, you only have 180 days from that moment in order to bring a claim. So many potential clients come to us after the statute of limitations has expired and their rights have run out. It’s important to file your administrative claim with OSHA as soon as possible. It is even more important to speak with a railroad attorney who understands the whistleblower laws and can help you file your claim.
Yes. All railroad workers are protected by the Federal Railroad Safety Act (FRSA) which was enacted to promote safety in all areas of railroad operations and to ensure that railroad employees engaging in certain protected activities under the Act could do so without the fear or threat of discrimination or retaliation from their railroad employer.
No, the whistleblower statute protects railroad workers in areas of safety. The Equal Employment Opportunity Commission (EEOC) protects employees against racial discrimination.
Yes, the whistleblower law clearly states that when an employee seeks to return to work based on his or her treating physician’s recommendation, and the railroad refuses to allow that employee to return to work, this is discipline and a violation of the whistleblower Act. The Act is designed in part to protect railroad workers from the railroad discriminating against employees who have reported injuries, have treated with their doctors to get well, and wish to resume their careers.
Yes. You should contact an attorney if you:
- Reported a safety issue or personal injury and was given a letter of reprimand in your file,
- Were told not to report the personal injury,
- Are being charged with rule violations repeatedly to pad your file,
- Experience harassment from your employer or others after having a personal injury,
- Are being told you cannot take a return-to-work physical after your doctor has released you to return to full duty;
- Are being threatened with a charge of absenteeism if you don’t return to work when your doctor has not released you to full duty;
- You were terminated after reporting a safety issue, or
- You were not allowed to bid for certain jobs or demoted after reporting a safety issue or unsafe working condition.
Call the experienced whistleblower railroad attorneys at Poolson Oden so we can help you navigate these issues and keep your whistleblower claim on track.
questions and concerns and carefully addressed each one. While going to court is never a pleasurable
experience, Danny made it a stress-free experience.
Jason M.
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