In August 2007, President Bush signed The Implementing Recommendations of the 9/11 Commission Act of 2007 (“9/11 Act”). The 9/11 Act included amendments to the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20109, which was designed to enhance and protect railroad safety. The amendments sought to expand whistleblower protections and remedies available to railroad employees who speak out about railroad safety concerns.
A. Who Is Covered?
Under the FRSA, a covered employer is any “railroad carrier engaged in interstate or foreign commerce,” or contractors or subcontractors of such a railroad carrier. Employees of public transportation agencies, or employees of providers of school buses, charters, and sightseeing transportation are not covered by the FRSA; however, they may be able to seek whistleblower protection under The National Transit Systems Security Act of 2007 or the Surface Transportation Assistance Act of 1982, respectively.
B. What Activity Is Protected Against Retaliation?
Your employer may not retaliate against you for providing information to or assisting in an investigation by a federal regulatory or law enforcement agency, a member or committee of Congress, or your company about a potential violation of any federal laws and regulations pertaining to: (1) railroad safety or security or (2) gross fraud, waste, or abuse of Federal grants or other public funds intended to be used for railroad safety or security. This includes furnishing information to regarding an accident resulting in death or injury to a person in connection with railroad transportation. Furthermore, your employer may not retaliate against you for notifying your company or the Secretary of Transportation of a work-related personal injury or work-related illness of an employee.
Additionally, your employer may not retaliate against you for reporting hazardous safety and security conditions, refusing to work under such conditions, or refusing to authorize the use of any safety- or security-related equipment, track, or railroad structures provided that:
- The refusal is made in good faith and no reasonable alternative to the refusal is available to the employee;
- A reasonable individual in the same circumstances would conclude the hazardous condition presents an imminent danger of death or serious injury, and the urgency of the situation does not allow sufficient time to eliminate the danger; and
- If possible, the employee has notified the railroad carrier of the hazardous condition and his /her intentions not to work or authorize the use of hazardous equipment until the safety and security conditions are corrected.
If you are injured on the job, your employer may not deny, delay, or interfere with your medical or first aid treatment or discipline you for requesting such treatment. Your employer also may not retaliate against you for reporting accurate hours of service.
Note that under the FRSA you must file a complaint of retaliation with any Occupational Safety & Health Administration (OSHA) office within 180 days of retaliatory actions by your employer.
C. What Retaliation Is Prohibited?
Under FRSA, a covered employer may not “discharge, demote, suspend, reprimand, or in any other way discriminate against” an employee for engaging in the protected activity listed above. These unfavorable personnel actions taken in retaliation for protected activity can include, but are not limited to:
- Termination of employment;
- Denial of promotion;
- Failure to pay overtime;
- Failure to hire/rehire;
- Intimidation or other physically or verbally threatening behavior;
- Unwarranted discipline;
- Unwarranted negative performance review;
- Suspension or other forced leave;
- Reduction in pay or hours;
- Denial of benefits;
- Reassignment that negatively impacts promotion prospects, seniority, or other benefits;
- Blacklisting; or
- Alteration of job duties (removal or excessive addition).
D. How Does A Potential Whistleblower Prove Retaliation?
To prevail in an FRSA case, an employee must establish that s/he engaged in a protected activity and that the protected activity was a contributing factor in the unfavorable personnel action.
E. What Is The Employer’s Burden Of Proof?
If a plaintiff successfully establishes that his protected activity was a contributing factor to the unfavorable personnel action, an employer may avoid liability by demonstrating by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the employee’s protected activity.
F. What Remedies Are Available To A Successful Claimant?
If the evidence supports your whistleblower claim under the FRSA, you may be entitled to remedies that include:
- Reinstatement with previous seniority and benefits
- Back pay with interest
- Compensatory damages, including compensation for special damages, expert witness fees, and reasonable attorney’s fees
- Punitive damages in certain cases, not to exceed $250,000.
G. How Do I Decide Whether And How To Report Unlawful Conduct?
Whether to railroad safety or fraud concerns- and, if so, when, how and to whom — can be a very difficult decision for an employee, as blowing the whistle on an employer’s unlawful practices can be a career-ending move. However, the FRSA provides strong legal protections, and employees who raise these concerns can look to a number of resources for assistance. If you are thinking about reporting such concerns, or if you already have and are facing retaliation, contact the experienced whistleblower lawyers at Katz, Marshall & Banks, LLP for an evaluation of your whistleblower case.