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WHISTLEBLOWER PROTECTION - RAILROAD RETALIATION REPORT - PART I
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.
Straight Track Newletter
FOR YOUR FAMILY
- PROTECT YOUR FAMILY'S FUTURE
- 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
- Memorial Day 2016 - National Moment of Remembrance
- Mayday May Day
- Veterans Day 2015 - A Different Perspective
- 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
RAILROAD LAW & NEWS
- Railroad Safety Regulations - Highest-Ever Penalty Collection Rate
- 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
- Railroad Feud - "And the survey says..."
- 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
- 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
- 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
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's And Diesel Fumes Threat To Workers And Commuters
- Metra Continues To Test Due To Diesel Fumes Threat
- 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