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WHISTLEBLOWER PROTECTION - RAILROAD RETALIATION REPORT - PART II
Following up on urgent recommendations from the 9/11 Commission for protecting the United States from future terrorist attacks, Congress has provided critical new protection for railroaders who “blow the whistle” on railroad failure to eliminate hazardous conditions and comply with federal safety and security rules.
Amending the FRSA, 49 United States Code, Section 20109, the new law prohibits railroads from retaliating against employees for railroad misconduct in several common situations. And, it gives federal administrators a heavy stick to penalize railroads that step out of line. The complete text of the new version of Section 20109 is available here.
Here are some basic questions and answers regarding the new law.
Q. What do I have to prove to win a case under Section 20109?
A. Under the new statute, you have to prove that (1) you engaged in protected activity; (2) the railroad knew or suspected you engaged in protected activity; (3) you suffered some kind of adverse or detrimental action from the railroad; and, (4) there was a connection between the adverse employment action and your protected activity.
Q. Is the new statute limited to situations where an employee was fired?
A. No. The new statute does not just apply to an employee who is fired. As amended on August 3, 2007, Section 20109 says that a railroad “may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part” to various specified protected activities. Section 20109(a).
After numerous Congressional committee hearings and meetings, it became evident to the members of Congress that railroads will plot an infinite number of ways to retaliate against employees who engage in protected activities. So the new law was broadly written to cover every conceivable type of adverse employment action.
Q. What kinds of actions by railroaders are considered protected activities by the new statute?
A. There are four major categories of protected activities under the law:
(1) Reporting violations of federal safety laws, injuries, hours on duty, hazardous conditions, and accidents. Sections 20109(a)(1), (4), (6) and (a)(7); plus Section 20109(b)(A).
(2) Declining to violate or assist in the violation of any safety or security law. Section 20109(a)(2).
(3) Cooperating with federal investigations. Section 20109(a)(5). And,
(4) Refusing to put up with hazardous conditions. Section 20109(c)(1).
Q. What “reporting” activities are protected by the new law?
A. The protected reporting activities include (1) reporting violations of federal safety or security laws or regulations; (2) reporting personal injuries; (3) accurately reporting hours worked; (4) reporting hazardous conditions; and (5) reporting accidents. Sections 20109(c)(1), (4), (7), and Section 20109(b)(A).
Significantly, the protection for reporting violations of federal safety or security laws is not limited to situations where an employee reports violations of the Federal Rail Safety Act. Instead, Section 20109 protects railroaders who report that their employer violated any federal safety or security law, rule or regulation. Section 20109(a)(1).
Even if it turns out that the railroad was not engaged in any violations, a railroader who blows the whistle is protected if he or she reasonably believed that the railroad breached federal safety or security laws or regulations. Section 20109(a)(1).
Q. What constitutes “assisting in an investigation”?
A. The new statute prohibits railroads from retaliating against employees who assist in federal investigations into whether the railroad violated any federal safety or security laws. Section 20109(a)(1).
Q. Where do I report a violation of the new statute?
A. The new statutory protection applies when a railroad employee reports violations of federal safety and security laws to federal, state, or local regulatory or law enforcement agencies. Section 20109(a)(1)(A).
Greatly strengthening this statutory protection, the amended law also applies when a railroad worker reports the railroad’s violation of any federal safety or security law to “a person with supervisory authority over the employee or such other person who has the authority to investigate, discover, or terminate the misconduct.” Section 20109(a)(1)(C).
In other words, the amended statute provides protection when reports of violations of federal safety or security laws are submitted to railroad supervisors.
Q. What happens if I report a personal injury? Is there any protection for me under the new statute?
A. The new statutory protection applies when a railroad retaliates against an employee for notifying or attempting to notify “the railroad carrier or the Secretary of Transportation of a work-related personal injury or work-related illness of an employee.” Section 20109(a)(3).
Q. How does the new statute apply to “reporting hours on duty”?
A. The new protection further applies when a railroad retaliates against an employee for accurately reporting hours on duty. Section 20109(a)(7).
The next issue of Straight Track, Part 3 of our introduction, will examine the important new protections that Congress provided for employees who refuse to tolerate hazardous workplace conditions. And, Part 4 of the Hoey & Farina WHISTLEBLOWER PROTECTION - RAILROAD RETALIATION REPORT will discuss procedures, remedies and defenses under the new 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 at 1-888-425-1212, or complete this form, for your FREE CONSULTATION. Hoey & Farina represents clients throughout the United States.
Straight Track Newletter
- 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
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- When In Doubt, Write It Out
- Preserving Evidence
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- 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
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- 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
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- 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
RAILROAD LAW & NEWS
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- 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
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
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- Metra's And Diesel Fumes Threat To Workers And Commuters
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- Oh My Aching Wrist! Carpal Tunnel Syndrome & The FELA
- Why Does It Still Hurt?
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- Good, Good, Good...Good Vibrations?
- Recovering From Emotional Stress (PTSD)
- Aggravating A Pre-Existing Condition
- Asbestos: Railroads' Quiet Killer
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- Complex Regional Pain Syndrome
- Everybody Hurts, Sometimes
- Are You Aware?
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- 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