WHISTLEBLOWER PROTECTION - RAILROAD RETALIATION REPORT - PART I

Whistleblower Protection Shield - FRSA
CONGRESS STANDS UP FOR RAILROADERS
Written By: James L. Farina, Alan J. Fisher and Steven P. Garmisa

Stepping in to protect railroaders who have the courage to report on violations of federal safety regulations, Congress enacted a powerful new law on August 3, 2007.

The new legislation – amending the Federal Rail Safety Act (49 United States Code, Section 20109) – follows up on recommendations made by the 9/11 Commission after the horrific terrorist attacks on September 11, 2001.

The 9/11 Commission realized the U.S. rail system is a critical target for terrorists, and railroaders are front line soldiers in the new war. Thus, to help strengthen our national defenses, Congress decided to support railroaders who report violations of federal safety laws and regulations. The new statute, “The Implementing Recommendations of the 9/11 Commission Act of 2007”, protects railroaders from retaliation for “blowing the whistle” when railroads violate federal safety laws and regulations.

Congress also provided important new safeguards for railroaders who are faced with hazardous working conditions. These safeguards include the right to refuse to work in dangerous situations. But, a detailed set of requirements must be followed before claiming your right under the statute to refuse to work under hazardous conditions. The text of the revised version of Section 20109 is available here.

As you know, knowledge is power for Railroaders in fighting railroad misconduct, intimidation and retaliation. So, this inaugural issue of the Hoey & Farina WHISTLEBLOWER PROTECTION - RAILROAD RETALIATION REPORT is the first of a thirteen-part discussion of the amended version of Section 20109.

It is important to note that historically, the FRA handled complaints of retaliation from railroad employees. Clearly unhappy with the FRA’s poor performance in protecting railroad employees from retaliation, Congress put the Department of Labor and OHSA in charge of administering the new whistleblower-protection program. Section 20109(c)(1).

Under the new law, it is illegal for a railroad to retaliate against an employee for reporting what he or she reasonably believes is a violation by the railroad of any federal safety law or regulation. Section 20109(a)(1). The new protection is not limited to cases where the railroad retaliates against an employee for reporting violations to the government. Instead, the new law reaches out to protect employees who report violations to “a person with supervisory authority over the employee.” Section 20109(a)(1)(C).

Accordingly, if you inform a railroad supervisor that the railroad violated a federal safety law or regulation, and the railroad retaliates in response, you can then file a complaint with OSHA. It is important to remember that you must file a complaint with OSHA within 180-days of the retaliation. Section 20109(c)(2)(A)(ii).

Another important section of the new law says the railroad is liable if the retaliation was based “in whole or in part” on the employee’s conduct in blowing the whistle on railroad misconduct. Section 20109(a). So, even if the railroad’s retaliation is also based on the fact that the employee filed a claim for personal injury under the FELA, the new whistleblower protection applies if the retaliation was based “in part” on the employee’s conduct in blowing the whistle on the railroad’s violation of federal safety laws or regulations.

To give added muscle to this new protection for whistleblowers, Congress gave OSHA authority to order the railroad to re-hire a fired employee, and restore lost seniority; compensate the employee for lost pay, with interest; pay for all other losses caused by the retaliation; reimburse the employee for expenses incurred in fighting the retaliation, including reimbursement for lawyer’s fees; and, where the railroad’s behavior is outrageous, give the employee up to $250,000 as punishment for the misconduct. Section 20109(d).

Another important section of the new law protects railroaders from retaliation for reporting personal injuries. Section 20109(a)(4). In testimony before Congress last October, the head of the FRA explained that the new whistleblower protection applies when a railroad retaliates against an employee for notifying the railroad of an on-the-job injury. As Joseph H. Boardman testified:

“Discriminating against an employee for (among other things) notifying, or attempting to notify, the railroad carrier or FRA of a work-related personal injury or work-related illness of an employee is prohibited under 49 U.S.C. 20109, as amended by section 1521 of the Implementing Recommendations of the 9/11 Commission Act of 2007.” [Emphasis added.]

One of the significant provisions added by Congress in the new statute was to specify that if OSHA does not rule on a complaint within 210 days after it was filed, and the delay is not the result of bad faith by the employee, then the employee gets to sue the railroad for retaliation in federal court. Section 20109(c)(3).

Congress realized that citizens of the United States will not be safe from future terrorist attacks if railroad employees are afraid of reporting violations of federal safety laws and regulations. As amended, Section 20109 holds out hope of strong protection for railroaders who blow the whistle when railroads step out of line.

The next twelve issues of the Hoey & Farina RAILROAD RETALIATION REPORT continues our introduction to this crucial new whistleblower protection law.

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, P.C. at 1-888-425-1212, or complete this form, for your FREE CONSULTATION. Hoey & Farina represents clients throughout the United States.

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