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Railway switch in action
Shapiro, Appleton & Washburn
(800) 752-0042

Having spent decades advising and representing railroad employees who suffered injuries on the job, I know that accidents rarely just happen. Safety problems usually build up over time. Inspections go undone. Repairs go unmade. Then, suddenly, an engineer, conductor, brakeman, trackman, mechanic or other worker finds themselves hospitalized and possibly unable to resume their career with the railroad.

Injuries, disabilities and deaths on trains, at rail yards and in shops can almost always be prevented. A single conscientious person calling attention to a loose handhold, a missing bolt, a rusted connector or a burned-out indicator light can be all it takes to save a limb or a life.

Railroad employees understand this, of course. But many do not file reports or raise alarms for fear of losing their jobs or bringing other troubles upon themselves. Those concerns are, sadly, justified. Retaliation against whistleblowers by managers and coworkers happens frequently.

Despite this, there are at least three very good reasons to report safety issues on trains and in rail yards.

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The Life You Save May Be Your Own

Literary allusion aside, workers protect themselves when they identify and demand fixes for problems that threaten their health and safety. This is true whether the issue is a malfunctioning switch, a loose coupling or a damaged radio. Submitting formal suggestions for improving and clarifying communications, adjusting schedules and ensuring on-time completion of tasks can also do much to make the job safer for yourself and your coworkers.

Knowing Obligates Railroads to Act

Federal regulations for implementing laws like the Locomotive Inspection Act and the Safety Appliance Act require rail corporations to follow-up on reports of damaged, defective, harmful and missing equipment. When a company fails to meet its legal duty to repair or replace an item it knows could cause injuries or deaths, any employee who does suffer an on-the-job accident has a strong chance of succeeding with a claim for compensation brought under the Federal Employers Liability Act.

FELA assigns strict liability to railroads that violate employee safety laws. This means that showing that a company ignored a report of a dangerous situation automatically makes the company responsible for paying medical bills and other forms of compensation to workers who suffer injuries due the company’s negligence.

Legal Protections for Railroad Whistleblowers Work

No one can deny that railroad workers who report safety problems run the risk of being labeled whiners and troublemakers, experiencing mistreatment and getting fired. Even the U.S. Congress acknowledged this when it passed the Federal Railroad Safety Act (49 U.S.C. §20109).

Administered by the Occupational Safety and Health Administration, FRSA makes it illegal to retaliate against railroad employees after they blow the whistle on unsafe equipment or working conditions. An OSHA factsheet lists prohibited acts of retaliation—“adverse employment actions” in legalese—as including, but not limited to

  • Firing or laying off
  • Blacklisting
  • Demoting
  • Denying overtime or promotion
  • Disciplining
  • Denying benefits
  • Failing to hire or rehire
  • Intimidation
  • Reassignment affecting promotion prospects
  • Reducing pay or hours
  • Making threats
  • Denying, delaying or interfering with the medical or first aid treatment of an employee who is injured during the course of employment

The whistleblower protections under FRSA are broad and strong. The text of the first part of the law is worth quoting at length:

(a) In general.–A railroad carrier engaged in interstate or foreign commerce, a contractor or a subcontractor of such a railroad carrier, or an officer or employee of such a railroad carrier, 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 the employee’s lawful, good faith act done, or perceived by the employer to have been done or about to be done– 

(1) to provide information, directly cause information to be provided, or otherwise directly assist in any investigation regarding any conduct which the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to railroad safety or security, or gross fraud, waste, or abuse of Federal grants or other public funds intended to be used for railroad safety or security, if the information or assistance is provided to or an investigation stemming from the provided information is conducted by–

  • a Federal, State, or local regulatory or law enforcement agency (including an office of the Inspector General under the Inspector General Act of 1978 (5 U.S.C. App.; Public Law 95-452);
  • any Member of Congress, any committee of Congress, or the Government Accountability Office; or
  • a person with supervisory authority over the employee or such other person who has the authority to investigate, discover, or terminate the misconduct; 

(2) to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security;

(3) to file a complaint, or directly cause to be brought a proceeding related to the enforcement of this part or, as applicable to railroad safety or security, chapter 51 or 57 of this title, or to testify in that proceeding;

(4) to notify, or attempt to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury or work-related illness of an employee;

(5) to cooperate with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board;

(6) to furnish information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with railroad transportation; or

(7) to accurately report hours on duty pursuant to chapter 211. 

(b) Hazardous safety or security conditions.– 

(1) A railroad carrier engaged in interstate or foreign commerce, or an officer or employee of such a railroad carrier, shall not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee for– 

  • reporting, in good faith, a hazardous safety or security condition;
  • refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties, if the conditions described in paragraph (2) exist; or
  • refusing to authorize the use of any safety-related equipment, track, or structures, if the employee is responsible for the inspection or repair of the equipment, track, or structures, when the employee believes that the equipment, track, or structures are in a hazardous safety or security condition, if the conditions described in paragraph (2) exist. 

(2) A refusal is protected under paragraph (1)(B) and (C) if– 

  • the refusal is made in good faith and no reasonable alternative to the refusal is available to the employee;
  • a reasonable individual in the circumstances then confronting the employee would conclude that–(i) the hazardous condition presents an imminent danger of death or serious injury; and (ii) the urgency of the situation does not allow sufficient time to eliminate the danger without such refusal; and
  • the employee, where possible, has notified the railroad carrier of the existence of the hazardous condition and the intention not to perform further work, or not to authorize the use of the hazardous equipment, track, or structures, unless the condition is corrected immediately or the equipment, track, or structures are repaired properly or replaced.

(3) In this subsection, only paragraph (1)(A) shall apply to security personnel employed by a railroad carrier to protect individuals and property transported by railroad.

The law also provides for protecting the identity of railroad whistleblowers.

When a complaint for retaliation is filed within 180 days of the last adverse employment action, the whistleblower is entitled to request each of the following:

  • Reinstatement with seniority at the time of suspension, layoff or firing;
  • Back pay with interest;
  • Compensatory damages, including court costs and attorney fees; and
  • Punitive damages (i.e., noncriminal monetary penalties).

And, yes, whistleblowers do win FRSA lawsuits.

EJL

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