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WHISTLEBLOWER PROTECTION - NEW FEDERAL LAW PROTECTS LOCAL REMEDIES
When the law in a state provides stronger protection for railroad employees, the railroad will often argue that the state law is preempted by a Federal law or regulation. That means the weaker Federal law displaces the stronger state statute. This kind of displacement of state law is called Federal preemption.
An important question under Section 20109 of the FRSA is whether this revised federal law preempts state remedies for what is called retaliatory-discharge.
Most states have judicial decisions or statutes that protect non-railroad employees from being fired in retaliation for filing claims under state workers’ compensation statutes. Under state workers’ compensation cases, an employee who is injured on the job gets a pre-set but small amount of benefits – even if the employer was not negligent. Workers compensation laws also typically say it is illegal for an employer to fire an employee in retaliation for filing a workers’ compensation case. The reason is that if employers could get away with firing an employee in retaliation for filing a workers’ compensation case, then employers could prevent employees from exercising their statutory rights. Thus, a non-railroad worker is protected by state law from retaliatory-discharge.
Of course, injured railroad employees do not get workers’ compensation benefits. Instead, injured railroad employees are entitled to sue their employer in state or federal court for negligence under the Federal Employers’ Liability Act (“FELA”). And, lawyers representing railroad employees have argued that state retaliatory-discharge laws should also apply to protect railroad employees who are fired in retaliation for filing a complaint under the FELA. The results have been mixed.
In 2005, for example, the Kansas Supreme Court ruled that a railroad employee who was fired for filing an FELA complaint is entitled to sue for retaliatory discharge. Hysten v. Burlington Northern Santa Fe Ry. Co. - http://www.kscourts.org/cases-and-opinions/opinions/supct/2004/20040319/90730.htm.p>
However, railroad employees who are injured in Illinois do not have the same protection as Kansas railroaders. In Illinois, a non-railroad employee can sue for retaliatory-discharge if he or she was fired for filing a workers’ compensation claim. And, significantly, Illinois judges have ruled that a non-railroad employee can sue for retaliatory discharge even if he or she is a union member who can attack the firing in grievance proceedings.
It makes sense, then, that Illinois judges should also permit a railroad employee to sue for retaliatory discharge if he or she is fired for filing an FELA claim. But last year, in a very disappointing decision, the Illinois Appellate Court ruled that a railroad employee cannot sue for retaliatory discharge if he or she was fired for filing an FELA complaint. Irizarry v. Illinois Central - http://www.state.il.us/court/Opinions/AppellateCourt/2007/1stDistrict/November/1061453.pdf.
Vermont and Louisiana, on the other hand, have wonderful statutes that protect railroad employees if they are fired for filing a personal injury case under the FELA. In Louisiana, a statute provides: “No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of [the Louisiana workers’ compensation statute] or under the law of any state or of the United States.” Louisiana Revised Statutes, Title 23, Section 1362.
Similarly, a Vermont law states: “No person shall discharge or discriminate against an employee from employment because such employee asserted a claim for benefits under [the Vermont workers’ compensation statute] or under the law of any state or under the United States.” Vermont Statutes, Title 21, Section 710.
This means that in Kansas, Louisiana or Vermont, a railroad employee can sue for retaliatory-discharge if he or she was fired for filing an FELA complaint. But, as you can probably guess, this means that railroads will want to claim Federal preemption. So, the key question is: Does the new version of Section 20109 of the Federal Rail Safety Act preempt state laws that protect railroad employees who are fired for engaging in protected activities? The answer is simple. Section 20109(f) states: “Nothing in this section preempts or diminishes any other safeguards against discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner of discrimination provided by Federal or State law.”
This means that if you are a resident of Kansas, Vermont or Louisiana, then you can still sue your employer for retaliatory discharge – under State law – if you are fired for filing an FELA complaint. For railroad employees who are residents in a state such as Illinois, where the judges have – so far – refused to follow Hysten, the focus should be on trying to get state legislators to enact the same kind of strong statutory protection provided in Vermont and Louisiana.
If you or a loved one have suffered a serious injury or wrongful death at work on the railroad, or been retaliated against at work for being a railroad whistleblower, call an experienced FELA personal injury lawyer / train accident lawyer at Hoey & Farina at 1-888-425-1212, or complete this form, for your FREE CONSULTATION. Hoey & Farina represents clients throughout the United States.
Straight Track Newletter
RAILROAD LAW & NEWS
- Railroaders' Rights - Protection Needed for Off-Duty Injuries / Illnesses
- FRA - Status of Positive Train Control Implementation
- An FELA Claim Is An Asset Of Bankruptcy Estate
- U.S. Court of Appeals Protects FRSA - Whistleblowers' Rights
- S.O.F.A. - Switching Fatality and Severe Injury Update
- Conductor Certification - Use It or Lose It
- U.S. Supreme Court Denies CSX Attempt To Change FELA
- New Restrictions on Crew Cell Phones Likely After Collision of BNSF Trains
- Trouble In Paradise
- Heat Order After Amtrak Derailment Slows Rail Service On CSX Tracks
- Illinois Adopts Strategy for Enforcing Crew-Van Safety Law
- Are Federal Appellate Judges Biased Against Plaintiffs?
- Big Win For Plaintiffs On Where Lawsuits Will Be Tried
- Empty Your Pockets
- Hoey & Farina Defeats Norfolk Southern & The Association Of American Railroads On Rail Safety Preemption Case
- FRA & Surface Transportation Board Join Forces With Hoey & Farina Against The NS & Association Of American Railroads
- Freight Railroads Hopeful for 2003, Passenger Rail Expects Upheaval
- U.S. Court Of Appeals Upholds Contractual Rights
- Railroad Punished For Destroying Evidence
- Injured Railroaders' Rights At Risk
- Inspector General Finds Lax FRA Enforcement
- Railroad Shoots Itself In The Caboose
- Lincoln Rides to the Rescue of Injured Railroaders
- The 911 On Reporting a Railroad Injury
- Railroad Injury Claims & Tax Returns
- Reporting A Railroad Injury - Your Duty & Rights
- The Fear Factor II: Think Twice About Toughening It Out
- Prior Injuries, Prior Accidents and Prior Medical Conditions - What You Should Know
- Notice, Notice & More Notice!
- Part II: "I Didn't See Anything"
- Part I : "I Didn't See Anything"
- Creating The Paper Trail
- What Every Union Officer Should Know
- The Fear Factor
- A Paper Trail Is Everything for an Injured Railroader
- When In Doubt, Write It Out
- Preserving Evidence
- Is There A Right Way To Complete A Personal Injury Report?
- Heed The Warnings!
- Even A Champion Has To Practice, Practice, Practice
- Never Put Off Reporting a Railroad Work Injury
- Personal Injury Report: A Deadly Weapon In The Railroad's Arsenal
- Do You Copy?
- Completing The Personal Injury Report -- The Right Way
- Fear Factor III
- Back To The Basics: How To Complete An On-The-Job Injury Report
HIRE A FELA LAWYER
- Where In The World Is Jim Farina?
- Remembering a Life of Giving
- How Many Lawyers Does It Take To...
- More Than Just Words: You May Not Need A Lawyer, But You Do Need Legal Advice
- Hoey & Farina: Representing All Seriously Injured Individuals & Their Families
- Notice - Unsafe Conditions on Railroads
- Friending & Defending
- Railroaders' Rights - The Cell Phone Trap
- Protecting Your Job & Your FELA Claim While Using Facebook
- Metra Conductor Attacked On Hyde Park Station Platform
- Retaliatory Discharge & The FELA
- "If It's Not A Slip, Trip or Fall, What Is It?"
- Railroads & Riverboats
- Know Your Equipment
- Working The Job & Getting Sued
- Best Practices For Reducing Injuries
- Working For The Railroad Off The Property
- Railroad Logic
- Shining The Light On Safety Standards For Signalmen
- Getting On and Off Moving Railroad Equipment
- Retaliatory Discharge: A Court Strikes Back
- Don't Be A Fool With The Rule
- Failed Couplings Under The Federal Safety Appliance Act
- Tangled In The Net
- Jury Returns $1,818,000 Verdict for Cumulative Trauma Injury
- 2012 Trial Lawyer Excellence Award Recipients
- Jury Trashes Metra's Defenses - Coach Cleaner Awarded $1.27 Million
- Hoey & Farina ‘Lights Up' The Belt - Verdict for Railroad Switchman in Locomotive Inspection Act Case
- Appellate Decision Upholds Engineer's "In Use" Argument in Balough v. Metra
- At The Heart Of A Railroad Family
- White Snow vs. Black Ice
- Record Verdict For Western Michigan - $7,263,000 For Injured Trackmen
- Jury Returns $33 Million Record Verdict In Illinois For Injured Railroader
- Verdict For Railroad Worker With Neck Injuries Caused By Defective Handrail
- Jury Returns $3.4 Million Verdict In West Virginia For Injured Conductor
- Big Supreme Court Victory For Railroaders - Part II
- Big Supreme Court Victory For Railroaders - Part I
- Structured Settlements: A Way To Secure Your Future
- Farina Beats BNSF on "Sole Cause" Defense
- Victory At Last: Tyrrell vs. NS Railway
- After Wild Ride, Hoey & Farina Helps To Snare Victory For Kentucky Railroader
- At Hoey & Farina, Size Doesn't Matter
- McLaughlin vs. CSXT - Offer: 0, Verdict: $2,331,000.00
- Record Illinois Verdict For Injured Railroad Employee
- Jury's "Not Guilty" Verdict Overturned By Federal Trial Judge
- Engineer Awarded $1,390,000.00 For Spinal Injuries Resulting From Locomotive Vibration
- BNSF Offers Low Settlement To Section Laborer, Hoey & Farina Litigates To Verdict In Iowa
- Important Verdict for Maintenance of Way Worker Affirmed by Eighth Circuit Court of Appeals
- Railroad Loses To Hoey & Farina On Appeal
- Major Verdict for Injured Railroad Employee After 27 Day Trial
- Verdict For Metra Electric Engineer "Trapped-Doored"
- Railroad, Military & Department of Veterans Affairs
- Hurt, Broke and Fired!
- Off-Track Vehicle Accident Benefits
- Disability Benefits: What Every Railroader Should Know
- Seniority Upheld Against Disability Rights
- Important Railroad Retirement Board Update
- Suddenly, Switching Career Tracks Doesn't Look So Unlikely
- RRB & Taxes
- How Railroaders Can Weather The Storm
- Railroad Injury Facts
- What Is The FELA?
- Test Your FELA Knowledge
- FELA 101
- Use 'Em Up & Spit 'Em Out: Negligent Assignment & The FELA
- Workplace Privacy & Personnel Records
- Bankruptcy and The FELA
- Clearing The Air On Railroader's Duty To Mitigate
- FELA Under Attack
- Section 60 of the FELA - Part II
- Section 60 of the FELA - Part I
- Crime Rarely Pays: The FELA & Criminal Acts Against Railroad Workers
- Railroader Discovers The "Discovery Rule" - The Hard Way
- Understanding The FELA
- Bankruptcy & The FELA, Part II
- The "Venue" Menu: What It Means For Injured Railroaders
- Your Railroad Work Injury
FOR YOUR FAMILY
- Prepare For Life's Unexpected Changes
- A Durable What ?!?!?!
- Hoey & Farina's Family Members Seminar & The People Who Are A Part Of Them
- Family's Prompt Action Secures Important Settlement For Injured Trainman
- If Tomorrow Never Comes
- What Do I Tell My Family? Part II
- A New Year's Resolution
- What Do I Tell My Family? Part I
- Expect The Unexpected
- A Call For Veterans
- Veterans Day
- A Call For Veterans' Stories
- Labor Day Celebrates Railroad Workers
- National Train Day May 8, 2010
- Celebrate Railroading On The Fourth of July!
- Veterans Day 2003
- Lessons From Our Steel Driving Hero
- The Real Meaning Of Labor Day
- Labor Day
- They Rode The Rails In Style
ABOUT STRAIGHT TRACK
- Prevent Health Insurance Coverage Problems
- Claim Agents' 3 Favorite Lies
- Winning The Railroad Lottery
- The Case Against Light Duty
- Is This The Same Railroad I Have Been Working For?
- Railroaded - A Fair Deal From The Claim Agent
- What's The Claim Agent's Job?
- "Must I Give A Statement To The Railroad About My Injury?"
- Railroad Offers Free Legal Advice To Injured Employees
- From One Railroader To Another: When Is It Advantageous To Deal With A Claim Agent?
- Deal or No Deal: The Railroad's Game
- Top Ten Lies From Railroad Claim Agents
- Like Fine Wine, Settle No Claim Before Its Time
- "Don't Worry" - Words of Comfort or Deception?
- In Your Best Interest
- Third Time's The Charm
- For A Limited Time Only
- So They Claim … Why Dealing With The Railroad Isn’t In Your Best Interest
- The Weather Outside is Frightful...
- Don't Let Your Claim Slip Away
- Prepare for the Winter Months
- 'Tis The Season To Be Careful
- Summer Time! Staying Healthy At Work on The Railroad
- Ice & Snow - Don't Let Your Claim Slip Away
- Railroad's Duty to Provide Safe Workplace During Summer
- The Bugs Are Back In Town
- The Effects of Walking on Ballast
- Reader's Response - Emotional Effects Of Collisions
- Emotional Effects of Collisions on Train Crew
- Metra Continues To Test Due To Diesel Fumes Threat
- Metra's And Diesel Fumes Threat To Workers And Commuters
- Diesel Fumes Threat To Railroad Workers And Commuters
- Checklist for Traumatic Brain Injury
- Oh My Aching Wrist! Carpal Tunnel Syndrome & The FELA
- Why Does It Still Hurt?
- The Creosote Threat To Railroaders
- New Study Reveals Risks from Harmful Vibrations For Engineers
- Traumatic Brain Injury: Not A Simple Diagnosis
- A Traumatic Experience Can Have Long Lasting Effects On Your Mental Health (PTSD)
- The Diesel Exhaust Threat
- Good, Good, Good...Good Vibrations?
- Recovering From Emotional Stress (PTSD)
- Aggravating A Pre-Existing Condition
- Asbestos: Railroads' Quiet Killer
- Understanding Back Pain: Getting It Evaluated & Treated
- Complex Regional Pain Syndrome
- Everybody Hurts, Sometimes
- Are You Aware?
- New FRA Rules On Locomotive Cab Noise
- Prior Medical Conditions
MEDICAL CARE / BILLS
- The Railroad In The Exam Room
- A Premium Smokescreen
- After I'm Hurt at Work, Why Should I Do Vocational Rehabilitation?
- Protecting Your Rights At The ER
- The ADA & Seniority Rights
- Post-Accident Drug & Alcohol Testing
- Medical Examinations & Occupational Disability
- When You Snooze -- You Lose (Your Rights Concerning Medical Care)
- Why Do Re-Hab Nurses Wear Fish Net Stockings?
- Who's Really Paying Your Medical Bills?
- Your Doctor Must Be Your Best Friend
- Company Doctor - Medical Witness
- Company-Ordered Medical Examinations
- Talking To Your Doctor
- No Costume Needed: A Scary Story for Halloween
- The Defense Medical Exam
- Victory For Railroaders' Medical Confidentiality
- The Railroad As Big Brother
- On A Need To Know Basis: Medical Bill Payments & The Injured Railroad Employee
STATUTE OF LIMITATIONS
- Your Right & Responsibility To Help!
- Honoring The Father, The Man & The Job
- Debs Was First Rail Trade Unionist To Champion Unity
- Your Right To Choose & Recommend Designated Legal Counsel Fought For By Your Union - Part II
- Your Right To Choose & Recommend Designated Legal Counsel Fought For By Your Union - Part I
- A Protected Right & Responsibility To Help!
- More Candid Talk About Video Surveillance
- Smile! You’re On Candid Camera: Video Surveillance Admissibility
- If Injured Be Aware: Surveillance Videos Can Destroy Your Case
- Under Surveillance? Don't Get Discredited!
MOTOR VEHICLES / CABS
- What Happens If The Railroad's Outside Contractor Creams Me?
- Understanding The Railroad's Use Of Taxi Cab Companies
- "Does The FELA Apply If I Am Injured Riding In A Motor Vehicle While I Am On The Job?"
- Don't Be Taken For A Ride
- Part I - Congress Stands Up For Railroad Whistleblowers
- Part II - Basic Questions And Answers About Whistleblower Protection Laws
- Part III - Protection for Refusing to Violate Safety Laws
- Part IV - Procedures & Remedies For Protecting Your Whistleblower Rights
- Part V - Supreme Court Decision May Extend Reach of Anti-Retaliation Law
- Part VI - Procedures for Filing Whistleblower Retaliation Claim
- Part VII - OSHA Investigation of Claim
- Part VIII - Sample OSHA Complaint
- Part IX - New Federal Law Protects Local Remedies
- Part X - Government Report Slams Railroad Misconduct
- Part XI - Sorting Out "Election of Remedies"
- Part XII - Court Clarifies Requirements For Proving A Retaliation Claim
- Part XIII - Railroad Leaves "Fingerprints" of Retaliation by "Hounding" Employee