In August 2007, in response to the 9/11 terrorist attacks on the World Trade Center, Congress enacted a new law that amended the Federal Rail Safety Act (49 United States Code, Section 20109) whose purpose it was to protect persons working in the rail industry from retaliation for “blowing the whistle” when railroads violate federal safety statutes, laws, and regulations. Additionally, the Congress of the United States provided critically necessary protection for railroad employees who were confronted with hazardous and dangerous working conditions. Under the law there are specific and detailed requirements that have to be complied with prior to claiming your right under the statute to refuse to work under hazardous conditions. Please refer to
http://www.osha.gov/dep/oia/whistleblower/acts/frsa.html.
Under the law it is illegal for the railroad to take retaliatory measures against a railroad employee for reporting what that person reasonably believes is a violation by the railroad of any federal safety statute law and/or regulation. Under Section 20109(a)(1) this protection is not limited to cases wherein the railroad retaliates against their employee for reporting violations to the government. Rather, the law, in fact, protects employees who report violations to “a person with Supervisory Authority over the employee.”
Therefore, if the railroad employee informs a supervisor of the railroad that the railroad has violated a federal safety statute, law, and/or regulation and the railroad then retaliates against the employee, the employee is then entitled to file a complaint with OSHA and must do so within 180 days of the retaliation.
Another critically important portion of the Whistleblower Act affords protection to railroad employees for exercising their rights under FELA by duly reporting personal injuries sustained at work (Section 20109(a)(4)). The reporting requirement is invoked whether it is made by the railroad to the FRA. It is important to be aware that under the statute if OSHA does not rule on the submitted complaint within 210 days after it was filed and the delay is not caused by the “bad faith” of the employee then the employee may sue the railroad for retaliation in Federal Court (Section 20109(c)(3)).
Many railroaders unfortunately are under the false impression that the statue only applies to an employee who has been fired. In fact, that statute states that the railroad “may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to various specified protected activities.” The protected reporting activities that are included within the statue are 1) reporting violations of federal safety or security laws or regulations, 2) reporting personal injuries, 3) accurately reporting hours worked, 4) reporting hazardous conditions, and 5) reporting accidents (Section 20109(b)(A), Sections 20109(c)(1)(4)(7)).
It is important to note that even if it is ultimately determined that the railroad did not engage in any violations, the railroad employee who “blows the whistle” is still protected under this statute if he or she reasonably believed that the railroad violated federal safety statutes, laws, and/or regulations.
Under the statute if OSHA rules against the railroad the employee is “entitled to all relief necessary to make the employee whole.” Under their broad powers derived from the statute, OSHA can order the railroad to reinstate the employee with seniority to pay lost wages with interest, afford enough in compensation to cover any losses caused by the retaliation, including reimbursement of attorney fees and costs to the attorney who represented the employee in the Whistleblower case. Additionally, OSHA is empowered to award up to $250,000 in punitive damages. OSHA’s ruling becomes final unless there is an objection within 30 days of the decision. After OSHA issues its decision, the railroad or the employee can request a trial before an Administrative Law Judge if they are dissatisfied with the ruling.
JAY A. KAPLAN
KAPLAN LAW CORPORATION
Union Approved F.E.L.A. Attorneys
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