Tag Archives: Federal Rail Safety Act

Third Circuit Court of Appeals Interprets FRSA

by 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.

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

by 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.

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

by 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.

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What is the railroad afraid of?

by 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.

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Union Pacific hit with FRSA award

by 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.

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Getting a prompt return to work from the railroad Medical Department

by 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.

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Rules Testing as a Form of Harassment

by 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.

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Get medical treatment from your own doctor

by on March 9, 2011 in Rail Law Blog

Following a workplace injury, most railroads require an injured employee to be examined by a physician on the railroad’s staff or by an outside doctor with whom it has a contractual relationship.  Your interaction with this doctor should be limited to determining whether you are physically approved to return to work.  You do not have to rely on any other advice or treatment recommendations from the company doctor.  Remember, the company doctor works for the railroad, not for you.  You do not have a physician/patient relationship with the company doctor, and any medical reports generated by the company doctor will automatically be provided to the railroad.

Your own doctor, on the other hand, has a confidential relationship with you.  If you seek medical advice from an independent physician, you can instruct him/her not to discuss your treatment with the railroad.  You should rely on your own doctor’s advice when deciding the best option to treat your injury, not on someone who will also consider what is best for the railroad.

If the railroad interferes with your right to seek treatment from your own physician, you may have a claim under the Federal Rail Safety Act (FRSA).

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The importance of worker solidarity

by on February 22, 2011 in Rail Law Blog

“An injury to one is the concern of all.”  – slogan of The Knights of Labor, circa 1880′s

This slogan is perhaps of greater importance in the railroad industry than most other industries in America.  Railroad workers are not covered by workers’ compensation, so the mere fact that a worker is injured on the job does not entitle him or her to damages.  A railroad employee must prove that the railroad was at fault before he or she can recover lost wages, payment for medical bills, or other damages.  Injuries in the railroad industry tend to be more severe than in other jobs because of the inherent dangers of the workers’ duties, so receiving compensation is often necessary to avoid economic collapse for the injured person.  (These cases do not involve workers sitting comfortably at home getting rich off the system).

Because the stakes are so high, it is vitally important for railroad workers to stand up for each other against employer intimidation.  Proving fault in FELA cases requires testimony from co-workers, about both the dangerous conditions allowed to exist at the time of the injury and about the railroad’s past practice of ignoring complaints.  Unfortunately, I have seen many employees refuse to testify in support of an injured co-worker, particularly when that person has become the target of harassment.  “I don’t want to put a target on my back, too, by helping him,” is the usual response.

The only reason railroads practice such intimidation is because workers allow it to be effective.  If everyone stands together, the intimidation will end.  The rights of all railroad workers under the FELA and FRSA can be fully protected if workers remain committed to each other.  If one of your union brothers or sisters is hurt, do everything you can to help them; next time it might be you who needs help.

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Filling out the railroad incident report

by on February 21, 2011 in Rail Law Blog

As soon as possible after suffering an injury at work, a railroad employee should fill out an accident report.  Most railroads have formal rules requiring that the accident report be filled out promptly after any injury.  Failure to complete the report opens the door for the railroad to deny that the injury occurred at work, to claim that the injury was so minor that the employee did not even bother to fill out the report, or to subject the employee to discipline for violation of the above-mentioned rule.

Merely filling out the report is not enough, however.  The employee must also be careful about what information is provided in the report.  It is best to make sure that a union representative is present at the time a report is completed, and if possible, call a railroad law attorney for advice before completing the report.  The injured employee should identify in the report all conditions in the workplace that contributed to the injury, including defective equipment, oversized ballast, lack of assistance, improper instruction, etc.  If the cause of an accident is not immediately apparent, do not concede that the railroad did nothing wrong.  Later investigation often reveals the cause of an accident that the employee was not aware of at the time.  Instead, simply write on the report that, “I do not know at this time what caused the accident.”  The information included in an incident report can be crucial to eventually proving the railroad’s negligence under the FELA.

Remember, you have specific legal protections against retaliation for truthfully reporting workplace injuries.  Filling out the railroad’s incident report is the best way to protect yourself.

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You have a right to immediate medical attention

by on February 8, 2011 in Rail Law Blog

If you suffer an injury on the railroad that requires immediate treatment,  demand that your supervisor get you to the nearest hospital.  Do not allow the supervisor to delay your treatment so that he or she can discuss the incident with you, fill out a report, or take a statement.  And do not allow the railroad to transport you to an out-of-the-way medical facility because they want you to be treated by the company doctor.  You have the right to be taken to the nearest hospital where safe and appropriate care is available to you.  Once you are at the hospital, do not allow your supervisor to discuss your treatment with the physician, nurses or staff.

A railroad employee can file a claim under the Federal Rail Safety Act (“FRSA”) if the railroad interferes with his or her right to medical care following an injury at work.  The FRSA states in part that a “railroad carrier…may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured [at work]…A railroad carrier…may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician…”  An employee who is successful in such a claim may obtain an award including punitive damages and attorneys’ fees.

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Why the FRSA works

by on February 8, 2011 in Rail Law Blog

Railroads have a long history of trying to intimidate their employees so workplace injuries are not reported and legitimate FELA claims are not pursued.  Employees that file claims are quickly the target of threats and discipline for being “accident prone” or “unsafe.”  In the past, the worker could only challenge the railroad’s harassment through the grievance process.  The grievance process in the railroad industry can take months, and even if the employee is successful, the most the railroad would have to pay is the employee’s backpay.  Under these circumstances, many employees who are hurt at work do everything they can to avoid reporting injuries.

The FRSA was amended specifically to address this problem, and to provide protection to injured employees so they can pursue FELA claims without fear of retribution.  How does the FRSA accomplish this goal?  An employee who proves that a railroad carrier has violated the FRSA is entitled to “all relief necessary to make the employee whole.”  Damages available under the act include reinstatement, restoration of seniority, backpay with interest, and compensatory damages including litigation costs, expert witness fees, and attorneys’ fees.  In addition, the FRSA permits recovery of punitive damages in some cases of up to $250,000.  Faced with the potential of paying such significant awards, railroads will be forced to deal with supervisors who try to intimidate employees into not reporting legitimate claims.  In this way, the FRSA can be a viable deterrent to harassment in the railroad industry.

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FRSA – Protection against retaliation

by on February 8, 2011 in Rail Law Blog

The Federal Rail Safety Act (“FRSA”) was recently amended to give railroad employees a remedy when they are retaliated against for reporting on-the-job injuries.  The provisions of this law have the potential to change the entire culture of the railroad industry.  Railroad supervisors can no longer threaten, harass or intimidate workers in an effort to keep them from pursuing their rights under the FELA.  For this change to occur, it is important that every railroad employee understand their rights under the FRSA and aggressively pursue claims when they arise.

The FRSA prohibits a railroad from retaliating against an employee for engaging in certain “protected activity.”  Protected activity includes assisting in the investigation of a railroad’s violation of federal regulations, reporting safety violations, notifying the railroad of a work-related personal injury, testifying as a witness in the investigation of an injury, or accurately reporting hours on duty.  A railroad may be liable under the FRSA if it disciplines, intimidates or retaliates against an employee for engaging in one of these activities.

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