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Third Circuit Court of Appeals Interprets FRSA

by athompson on February 20, 2013 in Rail Law Blog

The Third Circuit Court of Appeals reversed a lower court’s decision in favor of the railroad in a claim brought pursuant to the Federal Rail Safety Act (FRSA). The case, Araujo v. New Jersey Transit Rail Operations, Inc., was decided on February 19, 2013, and is the first interpretation of the FRSA by a federal court of appeals. Included in the decision is the affirmation of Congress’ intent that the FRSA be protective of plaintiff-employees. The burden of proof is much lower on an employee claiming retaliation than the burden on the railroad to establish a defense. The inequities built into the statute are intentional, and are meant to address the long history in the railroad industry of harassing employees who engage in protected activity. The court stated in its opinion that “the rail industry has a long history of underreporting incidents and accidents in compliance with Federal regulations. The underreporting of railroad employee injuries has long been a particular problem, and railroad labor organizations have frequently complained that harassment of employees who reported injuries is a common railroad management practice.”

As I’ve previously written on this blog, it is a common practice by some railroads to use a system of employee rules testing as a form of harassment. Within this system, railroad management and supervisors selectively enforce rules, which are typically overlooked or ignored, against employees who have recently engaged in protected activity. The Araujo decision makes clear that even if an employee violates a railroad’s written rules, it is not a valid defense to an FRSA claim if the employee can show that the rule was never previously enforced. (“While the facts in the record may show that Araujo was technically in violation of written rules, they do not shed any light on whether NJT’s decision to file disciplinary charges was retaliatory.”)

The Third Circuit’s decision was the first step in establishing the full extent to which the FRSA can provide protection to railroad employees who engage in protected activities. Hopefully the railroads are paying attention.

Wrongful Death Damages Available Under the FELA

by athompson on February 17, 2013 in Rail Law Blog

A tragic accident occurred yesterday at the ArcelorMittal steel plant in Cleveland, Ohio when a 50 year old railroad employee was killed after falling from a train car.

The incident raises the question of what damages are available to the individual’s family under the Federal Employers’ Liability Act (FELA). When a railroad employee is killed at work, a lawsuit can be filed by the surviving spouse or other representative of the worker’s estate. Like other injury claims under the FELA, the first step in such a case is to prove that the employee’s death was caused or contributed to by the railroad’s negligence or violation of a railroad safety statute. Once liability to established, the surviving spouse, children and next of kin are entitled to recover damages for (1) the conscious pain and suffering of the employee before his or her death; (2) the pecuniary damages of the surviving family members, which includes the value of wages, money, benefits, goods and services the employee would have contributed to those family members during his worklife; (3) his or her medical expenses; and (4) funeral expenses.

What is notably missing is the mental and emotional distress of the deceased employee’s loved ones. Although this is the largest element of loss in such a case, the statute does not require the railroad to pay such damages under the FELA.

Although the railroad industry is much safer than it used to be, the accident that occurred yesterday is a somber reminder of how dangerous railroading can be. Make sure that your spouse or loved ones know who to call and where to turn if something happens to you at work.

Administrative Law Judge Rejects Railroad’s Argument In Case Under FRSA

by athompson on February 11, 2013 in Rail Law Blog

I previously wrote a post about how railroads can use a system of operational rules testing as a form of harassment and retaliation after workers report safety concerns or injuries on duty. In one such case where those allegations have been made against CSX, an Administrative Law Judge recently rejected the railroad’s argument that the case should be dismissed because the railroad had a legitimate justification (the alleged rules violations) for suspending my client. The ALJ found that there was “ample evidence” to question whether the employee’s injury reports contributed to the railroad’s decision to suspend him. The ALJ noted that my client was subjected to 20 different rules tests on the date of the subject occurrence, whereas the engineer on the crew (who did not previously report an injury) was only tested on six rules. Other employees subjected to a higher number of tests on a given day had also previously reported injuries. The case will proceed to a full hearing in the spring for a determination of whether this disparate treatment, and subsequent suspension, was a violation of the FRSA. A copy of the full decision, Case No. 2012-FRS-00010, will be posted here by the Department of Labor.

OSHA finds Norfolk Southern Railway in violation of FRSA, awards $800,000 in damages

by athompson on June 19, 2012 in Rail Law Blog

The Occupational Safety and Health Administration announced yesterday that it has ordered Norfolk Southern Railway Co. to pay over $800,000 in damages on the claims of three employees who were retaliated against after reporting injuries at work. The awards include $525,000 in punitive damages and attorneys’ fees. As previously discussed in this blog, if employees are aggressive in pursuing claims under the Federal Rail Safety Act, and OSHA and other courts continue to award substantial damages, the culture of intimidation and harassment in the railroad industry will come to an end.

Ohio OT laws do not apply to railroad workers

by athompson on March 1, 2012 in Rail Law Blog

I was recently asked at a union meeting whether any laws in Ohio provide recourse to a railroad worker who was not paid 1 ½ times his regular rate of pay for hours worked in excess of eight hours. The short answer, unfortunately, is no. The reasons, in Ohio and also other states, are explained below.

Ohio Revised Code §4111.03(A) requires employers to pay one and one-half times an employee’s wage rate for any hours worked in excess of forty hours in a given workweek. (Unlike some other states, Ohio does not mandate overtime pay for extra hours worked in a day; the protection only applies to the 40 hour workweek.) The law exempts from its coverage, however, any employee that is also exempted from the overtime provisions of the federal Fair Labor Standards Act, at 29 U.S.C. §207 and §213. Buried within these federal exemptions, at §213(b)(2), are employees “of an employer engaged in the operation of a rail carrier subject to part A of subtitle IV of Title 49,” which includes almost all major railroads in the United States. The analysis in Ohio, and any other states that adopt the FLSA exemptions, is therefore easy — railroad workers are specifically exempt from protection, meaning they have no statutory right to be paid more than their hourly rate for hours in excess of 40 in a week.

Some other states have previously tried to pass laws protecting railroad workers’ rights to receive overtime pay. These attempts have also been unsuccessful. In R.J. Corman Railroad Co. v. Palmore (6th Cir. 1993), 999 F.2d 149, for example, the railroad challenged a Kentucky state overtime law that did not exempt workers in the railroad industry. The railroad argued that the issue of wages and hours in the rail industry is covered by federal law, and states cannot impose their own rules. Kentucky argued that since there is no federal rail law the expressly addressed overtime either by providing for or forbidding it, there is no conflict with its regulation. The court adopted the railroad’s position, and held that the Kentucky law, as applied to railroad workers, was preempted by federal law. Although there was no federal statute that directly conflicted with the state regulation, the court concluded “that the congressional purpose behind the Adamson Act [establishing a basic 8 hour workday in the rail industry] and Congress’s longstanding decision to regulate railroads on a national level make it reasonable to infer that Congress has impliedly preempted the area of overtime regulation for railroad employees.” Id. at 154. The Kentucky overtime law, like Ohio’s, did not apply to workers in the rail industry.

Like other issues dealing with wages and hours, the only remedy available for a railroad worker who is not paid overtime is the grievance procedure set forth in the Railway Labor Act. Although the law does not require payment of overtime, collective bargaining agreements in the industry certainly do.

“The FELA is a platypus”

by athompson on February 28, 2012 in Rail Law Blog

“In the taxonomy of the law, the Federal Employers’ Liability Act…is a platypus. Intended to provide a remedy for injured railroad workers, the FELA ‘hovers ambivalently between workers’ compensation law and the common law of negligence. It is neither, but it partakes of characteristics of both.’”

Page v. National Railroad Passenger Corp. (Md. App.) 2011 WL 3862852, quoting CSX v. Miller (Md. App. 2004), 159 Md. App. 123, 129.

This clever quote from a Maryland Appeals Court decision reminds us that railroad workers are not automatically entitled to compensation when they are injured (like workers’ compensation). It also makes clear, however, that railroaders should not be held to the standard of traditional negligence law. To promote safety in the railroad industry, Congress intended the FELA to provide a liberal remedy to railroad workers. The resulting compensation system under the FELA requires a showing of railroad negligence, but only a slight connection between that negligence and the employee’s injury.

Employees can best protect themselves under the FELA when they frequently provide a railroad with notice of dangerous conditions (in writing), by immediately reporting injuries, by acting as witnesses and testifying on behalf of fellow injured employees, by getting medical care and treatment with their own physician and carefully following the treatment plan, and by not returning to work (despite pressure from the railroad) until they have achieved a full recovery. Most importantly, get immediate legal advice from an attorney who is familiar with the railroad industry. The FELA, like a platypus, is unique, and injured workers should get guidance from someone who understands the nuances and complexities of the law.

Why I Practice Railroad Law

by athompson on October 26, 2011 in Rail Law Blog

When I tell people that I specialize in railroad law, they inevitably wonder two things. What is railroad law? I imagine people thinking that I have Sir Topham Hatt as a client and we discuss the legality of certain train moves by Thomas and Percy on the island of Sodor. (It’s not exactly like that. You can get a good idea of the answer to that question by reading previous blog posts.) The second thing people wonder is how I found out about railroad law and why I decided to make a career out of it. This post tries to give a clear answer to that question.

I come from a family of railroaders. I have grandparents, great-grandparents, uncles and cousins who work as conductors, engineers, and signalmen. Below is a photograph of my great-grandfather, Daniel Haley (far left). He worked for the Buffalo Rochester & Pittsburgh Railway in the early 1900′s, mostly transporting coal from Pennsylvania to Buffalo. He was a member of Local 681 of the Brotherhood of Locomotive Firemen & Engineers. He retired from the Baltimore & Ohio Railroad in 1939. Next to him in the photograph is Michael Haley, his brother.

BR&P Ry.

Daniel Haley (far left) and Michael Haley (second from left)

My grandfather (Daniel’s son) is pictured below. John Haley was an engineer for Conrail and worked out of Salamanca, New York. Some of his sons and grandsons also worked for the railroad, and still live in Salamanca. Although he died when I was relatively young, I still have vivid memories of my grandfather. I would bring him my report cards from school and he would give me a silver dollar for good grades. Perhaps it’s only fitting that I would put my education to good use by helping people like him.

John Haley

John Haley

I knew before I went to law school that I wanted to practice railroad law. My step-father was a vice president in the United Transportation Union, representing engineers and conductors from across the United States and parts of Canada. I grew up at union meetings and conventions. From a young age, I learned about the issues railroad employees have to deal with, including the risk of injury and the constant threat of harassment and intimidation. The labor relations departments of most major railroads in this country have a mindset that has not yet progressed beyond the Industrial Revolution. Railroad workers are treated by management like they are the enemy, even though they work long hours and weekends, away from home, and in dangerous conditions to help generate billions of dollars in revenue for the company.

I became a lawyer so I could help railroad employees deal with these issues. If the railroads are forced to comply with the law, and are challenged when they don’t, it helps to make the job safer and more secure for everyone. With that kind of payoff, why would I do anything else?

Weingarten Rights do not apply to railroad employees

by athompson on October 10, 2011 in Rail Law Blog

Employees covered by the National Labor Relations Act (NLRA) have a right to have a union representative or co-worker present during an investigatory interview with management when the employee reasonably believes that the interview might result in disciplinary action. This is generally described as the employee’s “Weingarten Rights,” referring to a case decided by the Supreme Court where it was held that denial of a request to have a representative present during such an interview was an unfair labor practice. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). Since railroad employees are covered by the Railway Labor Act, not the NLRA, do they have the same right to demand that a representative accompany them to an interview conducted by a management official?

Unfortunately, the answer is no. The reason for the difference can be found in the text of the statutes. Section 7 of the NLRA gives non-railroad employees the right “to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” 29 U.S.C. §157. The Supreme Court held in Weingarten that the request for a representative during an interview with management is considered “concerted activit[y] for…mutual aid or protection.” To put it simply, the right to have a union representative present while you are being interrogated by your supervisor protects not only you, but the entire group of people represented by the union. The language quoted prohibits a company from interfering with that right.

The language of the Railway Labor Act is more limited, however. Section 2, Fourth of the RLA provides that, “[e]mployees shall have the right to organize and bargain collectively through representatives of their own choosing…No [railroad], its officers or agents, shall deny or in any way question the right of its employees to join, organize, or assist in organizing the [union] of their choice, and it shall be unlawful for any [railroad] to interfere in any way with the organization of its employees…” 45 U.S.C. §152 Fourth. Notably missing from this section is a phrase comparable to “other mutual aid or protection.” The RLA’s focus is on protecting employees’ rights to select and form a union, and collectively bargain with the railroad through that union. The right to have a representative present during an interview with management is not covered by those rights.

Although such a right is not legally protected, railroad employees should always show up at investigatory interviews with a union representative or co-employee. A railroad official will be less likely to try to harass or intimidate if a witness is present, and he or she likely won’t know whether Weingarten rights apply or not. If the railroad official insists on speaking to the employee alone, however, the employee should not be insubordinate or refuse to cooperate. Get good advice before the interview occurs with your union representative, and if necessary, handle the interview alone.

Presidential Emergency Board No. 243

by athompson on October 7, 2011 in Rail Law Blog

A potential nationwide rail strike was halted yesterday by President Obama, who signed an Executive Order creating Presidential Emergency Board 243 (“PEB”) pursuant to the provisions of the Railway Labor Act (“RLA”). The dispute involves 11 rail labor unions and the National Carriers’ Conference Committee, which represents CSX, Norfolk Southern, BNSF, Kansas City Southern, Soo Line, Union Pacific and other railroads. The parties failed to reach agreement on a new collective bargaining agreement through negotiations and were permitted to go on strike or engage in a lock-out beginning October 7, 2011. The President’s creation of a PEB prevents such action under the terms of the RLA. President Obama appointed five members to the PEB – Ira F. Jaffe (Chair), Roberta Golick, Joshua M. Javits, Gil Vernon, and Arnold Zack.

Section 10 of the RLA allows the President to create a PEB when a dispute that has not been resolved by the parties “threaten[s] substantially to interrupt interstate commerce” to such a degree as to threaten “to deprive any section of the country of essential transportation service.” The RLA provides that the PEB is to investigate the dispute and make a report to the President within 30 days after the PEB’s appointment. During this 30 day period, the parties must not change the conditions of employment out of which the dispute arose (including no strike or lock-out). The report created by the PEB is non-binding, and is meant to narrow the issues and allow the parties to reach a voluntary settlement. However, if the parties fail to reach agreement, it is expected that Congress will step in and pass legislation imposing the terms of a new collective bargaining agreement. This prospect is a crapshoot for both sides, so there is a great incentive for them to reach agreement.

In 2006, I attended a rail law seminar at which Joshua Javits (a member of PEB 243) presented a paper titled, “A Neutral’s Perspective on Presidential Emergency Boards.” His presentation perhaps gives us a glimpse into what the parties should expect in the report of the PEB. He wrote:

“Neutrals like to avoid legislating new terms of an agreement for the parties. Neutrals are more comfortable providing guidance to the parties rather than imposing new terms on unwilling parties. Therefore, emergency boards tend to use a light touch. They recognize and encourage voluntary resolution through collective bargaining and defer to the parties’ power and interests…As Harry Rissetto, an eminent RLA practitioner, [said] the ‘mantra’ of the emergency board is, ‘If you can’t get it in bargaining, you won’t get it before an emergency board.’ Like doctors, the first principal of emergency board members is to ‘do no harm.’”

I wish the best of luck to all the brothers and sisters in rail labor involved in this dispute, and hope that a favorable resolution can be reached. If the current Congress gets involved, I’m not so sure that it will use such a “light touch.”

Don’t Delay – File for RRB Sickness Benefits Immediately

by athompson on October 6, 2011 in Rail Law Blog

I represent an employee of a small railroad in southern Ohio who does not belong to a union. After suffering an injury at work, he did not know what to do. Without guidance from a union or attorney, he was even unaware of the availability of benefits available to him through the Railroad Retirement Board. He did not file an application for Sickness Benefits with the RRB until he spoke to me, almost three months after the injury occurred. Unfortunately, regulations only permit the RRB to pay retroactively for 10 days. He essentially lost the money available to him for the several weeks in which he did not know to file. Here is a portion of the response he received from the RRB:

“The Railroad Unemployment Insurance Act provides that a Statement of Sickness is to be filed within 10 days of the first day of your infirmity. Under some circumstances a Statement of Sickness may be considered as filed on time even though it is received by the Board after 10 days. This applies in a case where the employee tried to file a Statement of Sickness at an earlier date, but was prevented by circumstances beyond his or her control from doing so…An employee’s lack of knowledge is not considered to be a circumstance beyond his or her control. Therefore, we cannot consider that your Statement of Sickness was filed within the prescribed time.”

If you or a co-worker suffers an injury at work that will result in lost time, you must file an application for these benefits within 10 days or you may lose benefits. Immediately contact your union representative or an attorney familiar with the railroad industry for guidance.

For those brothers and sisters reading this blog who are members of the Brotherhood of Railroad Signalmen, there is a great insert on this topic in the middle of the 3^rd Quarter 2011 Signalman’s Journal.

Supreme Court affirms reduced causation standard under FELA

by athompson on July 21, 2011 in Rail Law Blog

The United States Supreme Court decided last month in a 5-4 decision that injured railroad workers can recover damages under the Federal Employers’ Liability Act (“FELA”) if the railroad’s negligence “played any part, even the slightest, in producing the injury for which damages are sought.” See CSX Transportation, Inc. v. McBride, Case No. 10-235. The majority opinion upheld decades of lower court decisions and rejected an attempt by the railroad to make recovery under the FELA more difficult for railroad employees.

The primary issue in McBride was the appropriate legal standard of causation in FELA cases. Injuries have countless causes. The law does not generally recognize all of of these causes as the basis for legal liability. At some point in the chain of events, the cause of an injury becomes too remote. This concept is usually referred to as “proximate” cause. Charles A. Rothfeld, Esq., the attorney who presented the oral argument on behalf of CSX in McBride, provided the Court with an extreme example of this concept. If I drive you from Washington, D.C. to New York, and I drive too fast, exceeding the speed limit, I am negligent. If you are injured because I get into an accident and hit another car, my negligence can be considered the proximate cause of your injuries, because the negligence directly causes the accident. Consider, alternatively, the case where we get to New York safely and at the precise moment you get out of the car you are struck by lightning. My negligence is technically a cause of your injury, because if I would have driven the speed limit you would not have been at that spot when lightning struck. In this situation my negligence would not be the proximate cause, however, because it is too remote from the event.

When Congress passed the FELA in 1908, it included language in the statute making the railroad liable in damages to any employee for an injury “resulting in whole or in part from the negligence” of the railroad. At that time, the railroad industry was extremely dangerous, causing 281,645 casualties in the year 1908 alone. (McBride, p. 4). Many injured employees were unable to recover damages from the railroad before the FELA because the law generally protected employers from such claims. Congress intended the FELA to change that and allow liberal recoveries to railroad employees. Given the “in whole or in part” language of the statute, and the humanitarian and remedial goals of Congress in enacting the FELA, courts have consistently held that a relaxed standard of causation applies under the FELA. (McBride, p. 5).

Last month in the McBride decision, the Supreme Court upheld that interpretation. Although the FELA still won’t allow recovery if a worker is struck by lightning in the example above, the worker does not have to prove that the railroad’s negligence is the direct and immediate cause of the incident causing his injuries. It is sufficient to show that the railroad’s negligence played any part, even in the slightest, in producing the injury.

What is the railroad afraid of?

by athompson on June 7, 2011 in Rail Law Blog

A railroad conductor recently sought my help when he was asked to give a witness statement by the railroad’s claim department. He was working with an engineer who suffered an injury and later brought a claim against the railroad under the FELA. (The engineer hired a different attorney, he was not my client). The conductor told me that he was concerned about harassment and retaliation from local supervisors if he told the truth (that the railroad’s negligence caused the injury to the engineer). Since the railroad refused to allow him to bring a union representative, he asked me to appear with him. I advised him of his rights under the Federal Rail Safety Act (FRSA) that provide protections against such harassment, encouraged him to tell the truth to help his co-worker, and agreed to accompany him to the meeting.

When I arrived at the local yard office with the conductor, let’s just say that they didn’t roll out the welcome mat for me. As soon as I notified the claim agent that I was an attorney, he closed us out of the room and began making phone calls. After several minutes, he reappeared and said that he would not talk to the conductor that morning, but would reschedule the meeting for another time when I was not present. I tried to assure the claim agent that I was not there to interrupt the process, but to merely observe and answer any questions the conductor might have during the interview. I offered to wait in the hallway, but was told that I needed to leave the building. I was told that the railroad’s policy was not to allow attorneys to be present during statements with the claim department. (It is interesting to note that one of the railroad’s attorneys was seated at the table next to the claim agent when we arrived).

If the only purpose of such meetings is to “get the facts,” why was the railroad so afraid of my presence that morning? Consider the answer to that question the next time you are contacted by the claim department.

Recovery for emotional injury under the FELA

by athompson on May 17, 2011 in Rail Law Blog

In certain circumstances, courts allow railroad employees to recover damages under the Federal Employers Liability Act (FELA) when they suffer only a psychological or emotional injury (without any physical injury). The United States Supreme Court established a “zone of danger” test to identify those cases that are actionable. Under the zone of danger test, an employee may recover damages if the railroad’s negligence placed them in imminent threat of physical harm. The Supreme Court reasoned that “emotional injuries can be just as debilitating as physical injuries,” and that “a near miss may be as frightening as a direct hit.” Consolidated Rail Corporation v. Gottshall (1994), 512 U.S. 532.

I handled such a case for a track inspector in Pennsylvania. He was working in his truck on a section of track near his home terminal. He had just completed an inspection and was filling out paperwork. The dispatcher mistakenly sent a train down the siding on which the inspector was parked. He was startled by the train’s horn and saw the oncoming light of the locomotive in his rearview mirror. When he punched the accelerated in his truck, the rubber truck wheels spun on the metal rails. After another try, he was gradually able to get the vehicle moving. The train engaged its emergency brake when the engineer spotted the inspector’s truck, and luckily a collision was avoided.

After the incident, the inspector suffered a severe psychological injury, including post traumatic stress disorder. He had difficulty working around moving trains without anxiety and fear of getting hit. In an action for damages under the FELA, the court found that the dispatcher’s negligence in directing the train down an occupied track placed the inspector in imminent threat of physical harm under the zone of danger test, and allowed the case to go to trial.

Another example of why to promptly report your injury at work

by athompson on May 12, 2011 in Rail Law Blog

It is crucial for railroad employees to immediately report their injuries at work. A recent case illustrates why this is so important. I represent an individual who injured his lower back when his co-worker unexpectedly dropped a heavy load they were both carrying. The co-worker apologized, and the employee told his immediate supervisor what happened. Instead of filling out an incident report, however, the injured employee was persuaded by the supervisor to “take it easy” for the rest of the shift and see how he feels. For the next several days, the employee reported to work, told his supervisor he still felt pain in his lower back, and was told he could sit in the supervisor’s truck and rest until the end of the shift. “Let’s see how you’re doing tomorrow,” he was told. After about a week, the employee felt pressure from his co-workers to return to the job. He felt guilty sitting in the truck all day while the rest of the crew was working. So the injured employee tried to perform his regular job duties, and not suprisingly the pain in his lower back got worse. He told his supervisor he needed medical attention and was finally given an incident report to fill out. The employee was diagnosed with multiple disc herniations and was out of work for over two years.

The employee pursued a claim under the Federal Employers’ Liability Act (FELA) for damages resulting from the incident. In its defense of the case, the railroad argued that the accident that caused the employee’s injury never happened. The first time I learned of an injury, the supervisor claimed, was the day he filled out an incident report (two weeks after the original incident). The co-worker, in an apparent attempt to shield himself from responsibility and avoid possible discipline, denied that he ever dropped a heavy load that he was carrying with my client. My client was being protrayed as a liar, as someone who was trying to take advantage of the railroad and get money for an injury that must not have occured at work.

After my client suffered his injury, he could have protected himself by immediately seeking medical attention and filling out an incident report. Instead, he was convinced that he should be a “team player” and try to help the railroad avoid the requirements of reporting an at-work injury to the Federal Railroad Administration (FRA). As he found out, when it is discovered that the injury is serious, the railroad is not interested in returning the favor.

If you get hurt at work, take whatever steps you can to make sure that you will be protected. This includes seeking medical attention, promptly filling out the incident report, and getting advice from an attorney familiar with the railroad industry.

Union Pacific hit with FRSA award

by athompson on May 4, 2011 in Rail Law Blog

An employee of Union Pacific railroad was reinstated with backpay, compensatory damages, attorneys’ fees and punitive damages of over $200,000 after he was terminated for reporting an injury on duty. UP is appealing the decision, denying that it violated the Federal Rail Safety Act. OSHA issued this press release on the case.

Getting a prompt return to work from the railroad Medical Department

by athompson on May 3, 2011 in Rail Law Blog

I recently received a call from a railroad conductor who was having a difficult time getting the railroad medical department to approve him for a return to work following an injury. It is not uncommon for an injured employee to be pulled out of service by the railroad’s medical department because of an alleged physical limitation, even though all of the employee’s treating physicians have cleared him to return to work. The employee is forced to miss work and lose wages, sometimes for a significant period of time. The railroad’s motivation in some of these cases is not the safety of the employee or his co-workers, but retaliation for reporting an injury at work. In these cases, the empoyee may have a claim under the Federal Rail Safety Act.

Even if the condition cited by the railroad’s medical department is not related to an injury, there may still be a violation of the employee’s rights under the law. If an otherwise healthy employee is not permitted to work because the railroad regards him as disabled, it may be a violation of the Americans With Disabilities Act (ADA). We have been successful in utilizing the ADA to get railroad employees promptly returned to work. In Pierson v. Norfolk Southern Railway Co., for example, an Ohio court of appeals held that a railroad employee at the Ashtabula Coal Dock stated a claim under the ADA when the railroad’s medical department refused to return him to work after he finished treatment for a heart condition. The employee’s treating doctors said he was qualified to do his job, but the NS Medical Department unreasonably disagreed.

If you are having difficulty dealing with the railroad medical department, contact our firm. We can evaluate the specific circumstances of your case to see if your rights are being violated.

Tragic accident highlights dangers of transporting railroad crews

by athompson on April 22, 2011 in Rail Law Blog

A tragic accident in Kelso, Washington last month killed three railroad employees and injured a fourth. The accident did not happen while the workers were performing their job duties, but during a ride in a van back to their motel. Railroads commonly transport crews from one location to another in a van or other shuttle vehicle. As the events in Washington illustrate, this trip is often more treacherous for railroad employees than traveling by train. The vans are often poorly equipped, worn out, and driven by inexperienced and fatigued drivers. (The cause of the accident in Kelso is still under investigation).

When railroad workers are injured during a trip in these vehicles, they may be able to bring a claim under the Federal Employers’ Liability Act (FELA) against the railroad. The driver of the vehicle, and the transportation company, is considered an agent of the railroad. The employee can therefore bring an FELA claim against the railroad if the driver’s negligence caused or contributed to an accident, or if the vehicle is negligently maintained or defective. In most instances, the FELA provides a better remedy for employees than state tort law, so a claim directly against the railroad should be fully explored.

As previously mentioned in this blog, when a railroad employee is injured under these circumstances, he may also have a contractual right to benefits under the Off Track Vehicle Agreement.

The railroad claim agent is not your friend

by athompson on April 14, 2011 in Rail Law Blog

Let’s take a closer look at #4 on our workplace injury checklist. Do not give a recorded statement to a railroad claim agent. Although railroad rules require an injured worker to report an injury, and to possibly participate in an investigation with a supervisor, there is no rule that requires you to provide a recorded statement to a railroad claim agent about how an injury happened. And since I’ve never seen a claim agent conclude an employee statement by declaring, “I guess we were wrong, how much do you want me to pay you…,” there is absolutely no benefit to an injured worker in participating in this process.

The claim agent wants to record your statement as soon after an accident occurs for one reason — to get ammunition to defeat any claim you might later bring against the railroad. The claim agent does not need the statement to figure out what happened. He can get all of that information from the supervisor to whom the injured worker reported the incident. He doesn’t need a statement to understand the nature and extent of the worker’s injuries. The railroad already has copies of all relevant medical records (allowing it to process payment of the bills). The claim agent has been trained to try to get the employee to admit that the incident was his or her own fault, that the railroad didn’t do anything wrong, or that the injuries really aren’t that bad.

The best protection for an injured employee is to get legal advice as soon as possible after an injury occurs. Do not make any statements to a claim agent until you discuss your incident with an attorney. If you eventually need to hire a lawyer to pursue a claim under the Federal Employers Liability Act (FELA), the lawyer can talk to the claim agent directly. If the matter is not serious, and you want to settle the case on your own, at least get good advice and guidance from a railroad attorney who is familiar with the process.

Rules Testing as a Form of Harassment

by athompson on April 11, 2011 in Rail Law Blog

How would you like your supervisor to follow you all day, look over your shoulder at everything you do, and write down every time you make a mistake? This is what railroad employees endure during rules tests on a regular basis. For the vast majority of employees, the process can be fairly routine. If the employee recently reported a workplace injury, however, or settled a case under the FELA, the process can be career-threatening.

I have seen many recent cases in which railroads use the rules testing process as a form of harassment against workers who report workplace injuries. The testing is longer, more intense, and more frequent for injured employees. Every perceived violation is pursued through the progressive discipline process. (It is at times equivalent to you getting pulled over by the police and given a ticket every time you drive a few miles per hour over the speed limit). I have dealt with cases in which rules violations are fabricated by the railroad, conditions are set up so it is almost impossible for the employee to comply with all rules, or where the supervisors simply continue observations until they find a violation, no matter how long it takes. For the first violations, the railroad offers the employee a reduced penalty in exchange for an admission of guilt. Eventually, the employee will be facing termination.

This type of harassment may be actionable under the Federal Rail Safety Act (“FRSA”). The FRSA prohibits a railroad from retaliating against an employee for notifying the railroad of a work-related personal injury. Rules testing may rise to the level of retaliation if it can be shown that the railroad treats you more harshly than other employees because you were injured. If you feel that you are being harassed because you reported an injury, contact our office and we can investigate whether you have a potential claim under the FRSA.

FRA Study Confirms Dangers of Walking on Ballast

by athompson on March 30, 2011 in Rail Law Blog

The findings of a study released earlier this month by the Federal Railroad Administration will come as no surprise to most railroad employees — walking on mainline ballast can cause muscle fatigue and increased stress on your joints.

The study, a collaboration between university and industry researchers funded by the FRA, examined 20 healthy adult men walking on three different surfaces — mainline ballast, walking ballast, and a level firm surface with no ballast. The researchers collected data, including electromyographic (EMG) signals from the subjects’ lower extremety muscles, to determine the effects on the body of walking on these surfaces. The researchers concluded that even though the subjects walked slower and more cautiously on mainline ballast, the surface put greater stress on the joints and muscles. The study suggested that “increased efforts to place [walking ballast] where walking occurs and to maintain those surfaces will increase safety and decrease demands on the musculoskeletal systems of railroad employees.”

If you develop musculoskeletal problems, and you were required as a part of your job with the railroad to walk on poorly maintained ballast, you may be able to file a claim under the Federal Employers’ Liability Act. As with many safety concerns in the railroad industry, the most effective way to get the railroad to invest in eliminating the danger is the threat of liability under the FELA.