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Straight
Track #49
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Section 60 of the
FELA
Part I
George
Brugess
Hoey & Farina Attorney
Tel Toll Free: 1-888-425-1212
As we all know, as soon as a railroad employee is injured, the
railroad starts plotting how it will defeat any potential claim.
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Immediately, the railroad claim agent, law department,
police department and supervisors go into action.
Some railroad officers are assigned to follow the ambulance to the
hospital where they will interrogate the injured employee even as he is
being wheeled in for emergency surgery!!
Other officials converge on the scene deciding what evidence to
keep and what evidence should be allowed to drift away like the sands of
time.
For example, this firm has handled numerous coupling
injury cases. Sometimes no
inspection of the equipment is performed, other times a visual inspection
is done, still in other cases an abbreviated inspection will determine
only if the coupler will open and close and sometimes, rarely, the
couplers will be broken down for a complete internal inspection.
In some cases the railroad takes extensive photographs of the
scene, in other cases nothing is photographed.
Sometimes the railroad takes statements of everyone involved, other
times selected employees are deposed, and often the railroad claims it
never interviewed anyone.
Hoey & Farina regularly receives calls at
all hours of the day and night reporting a serious injury on the railroad.
We immediately launch our own investigation in an attempt to
protect the injured employee from the railroad “stacking the deck”
against him.
One of the best and most reliable sources of information
is from co-workers of the injured employee.
If there are eyewitnesses to the accident, pre-injury or
post-injury witnesses to a defective or dangerous condition, or
post-injury witnesses to the railroad’s selective investigative
techniques, we will attempt to obtain written statements documenting those
facts. The human memory is a
very fragile thing. Unless impressions are immediately committed to paper, they
are prone to fade into oblivion.
Recognizing the need to protect injured railroaders,
Congress passed § 60 of the FELA. Section
60 makes it a federal criminal offense for a railroad officer “by
threat, intimidation, order, rule, contract, regulation or device
whatsoever” to attempt to prevent any employee from furnishing
voluntarily information about an injury to the injured employee, his
family or his attorney. The
maximum penalty for conviction of a violation of § 60 is one year in jail
and a $1,000.00 fine.
Some Courts have interpreted § 60 to permit an injured
employee’s counsel to communicate with any railroad employee, even the
railroad’s president during an investigation into the facts of an
injury. Although we have
never called a railroad’s president seeking a statement, we have gone to
great lengths to protect an injured employee’s right to investigate
under § 60.
Notwithstanding the clear mandate of § 60 of the FELA,
many railroad safety rules still contain sketchy restrictions on giving
information after an accident. Often
this rule is craftily worded so as to barely recognize the requirements of
§ 60, but still can be cited by a supervisor to intimidate an employee
from helping an injured co-worker.
In the event a railroad official attempts to prevent an
employee from voluntarily providing information to an interested party
after an injury to a railroad employee, a full record should be made,
including the name of the official, the date, time and location of the
incident and the names of any witnesses.
Most railroad officers are trained in the prohibitions of § 60.
If asked, point blank, if they are ordering an employee not to
voluntarily furnish information to an interested party, the officer
usually will back down.
Nevertheless,
§ 60 is an important right granted by the United States Congress to all
railroad employees in the event they are injured.
Any action by the railroad to encroach on § 60 rights must be
firmly and immediately called to the attention of the FRA, your union
officer and the injured employee’s designated counsel.
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