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WHISTLEBLOWER PROTECTION - RAILROAD RETALIATION REPORT - PART IV
In the first five months after the FRSA was amended by Congress to strengthen protections for railroad employees, four complaints were filed with the OSHA under the revised law. As of January 3, 2008, three of the complaints filed by railroaders under 49 United States Code, Section 20109 were still being investigated by OSHA. The fourth complaint, filed by a CSX dispatcher, was dismissed. OSHA concluded that the new whistleblower protections did not apply because the CSX dispatcher was fired before the new law went into effect on August 3, 2007.
Does this mean that only three Railroaders were the victims of unlawful retaliation by railroads after Section 20109 was amended? We think it is more likely that awareness of the new law has not yet flowed from The Congressional Record to rail yards. We hope the flow of information from Straight Track will become a valuable reservoir of knowledge and awareness, so that railroaders can exercise their new rights under Section 20109.
To exercise your new rights, you need to know procedures and remedies under the new statute. We hope the following information will serve as a guide to help railroaders understand their rights under the statute.
An employee who alleges that he or she was fired, disciplined or otherwise discriminated against in violation of the new whistleblower protection law can file a complaint with the Secretary of Labor.
OSHA acts on behalf of the Secretary of Labor in handling the new whistleblower program.
The Initial Showing
When a railroader files a complaint under Section 20109, OSHA first looks for whether the employee made an initial showing that protected activity was a contributing factor in the railroad’s alleged retaliation.
If OSHA decides that the employee failed to make the required initial showing, it will dismiss the complaint without conducting an investigation.
And, even if OSHA concludes that a railroader made the required initial showing, no investigation will be conducted if the railroad convinces OSHA, by “clear and convincing evidence”, that the railroad would have taken the same disciplinary action even if the railroader had not engaged in protected activity.
For example, if a railroad employee alleges he was fired in retaliation for reporting violations of federal safety rules, but the railroad proves by clear and convincing evidence that it fired the employee because it discovered that he was drinking on the job, OSHA can dismiss the complaint without an investigation.
Clear and Convincing Evidence
In most civil cases, including lawsuits based on the Federal Employers’ Liability Act, the “burden of proof” is “a preponderance of the evidence.” In plain language, this means that the plaintiff wins if he or she convinces the jury that the required facts are probably true. In criminal cases, the prosecution must prove its case “beyond a reasonable doubt.”
The “clear and convincing” requirement that Congress imposed on railroads is somewhere in between the heavy “burden of proof” in a criminal case, and the much lighter “burden of proof” in civil cases. This means Congress wanted to make it difficult for railroads to escape liability for retaliation, but not as hard as having to prove guilt in a criminal case.
Direct and Circumstantial Evidence
You would have “direct evidence” of a violation of Section 20109 if a supervisor bluntly declared: “We are retaliating against you for sending reports to the federal government.” Direct evidence of this magnitude usually is not available. However, circumstantial evidence can be very persuasive. If you did not see someone walk across a field, for example, you would not have direct evidence of that fact. But if you see human footprints in fresh snow, those circumstances are strong “circumstantial evidence” that someone walked across the field after it snowed. You did not see it, but you proved it with circumstantial evidence.
Ruling against Railroads
After an investigation, OSHA will not rule against the railroad unless the employee proves that his or her protected activity was a “contributing factor” in the railroad’s decision to retaliate against the employee.
And even if OSHA decides there was unlawful retaliation, OSHA will not punish the railroad if it proves, again, by clear and convincing evidence, that it would have taken the same action against the employee even if he had not engaged in protected activity.
The complaint must be filed with OSHA within 180 days after an alleged violation. Then, if OSHA fails to issue a final decision within 210 days after the filing of a complaint, and the delay was not due to bad faith by the employee, the employee can file a lawsuit in federal court, with a right to trial by jury.
If OSHA rules against the railroad, the employee is “entitled to all relief necessary to make the employee whole.”
Among other things, OSHA can order the railroad to reinstate the employee with seniority; pay lost wages, with interest; give the employee enough money to cover any other losses caused by retaliation, including reimbursement for the fees and expenses of the lawyer who represented the employee in the whistleblower case. Plus, OSHA can award up to $250,000 in punitive damages against the railroad.
OSHA’s ruling becomes final unless there is an objection within 30 days. After OSHA issues its ruling, though, the railroad or employee can request a trial before an Administrative Law Judge.
Here is a re-cap of what you have to prove in order to win your case under Section 20109:
1. Protected Activity - You engaged in activity that is protected under the statute.
2. Employer Knowledge - Your employer knew or suspected that you engaged in protected activity.
3. Adverse Action - You were fired, demoted, suspended, reprimanded, or suffered any other type of detrimental action from your employer.
4. Connection - There was a connection between the protected activity and the adverse action. If there is no direct evidence of the required connection, this can be established circumstantially.
In a whistleblower protection case, the type of circumstances that help establish the required connection between (1) protected activities and (2) retaliation include such things as:
• Any animosity or hostility expressed by railroad supervisors toward the protected activity.
• The closeness in time between the protected activity and the retaliation. • Whether there was different treatment of the employee who filed the complaint compared to other similarly-situated employees.
• Whether the railroad use false testimony or manufactured evidence. And,
• Whether the railroad’s defenses were obviously phony.
The Hoey & Farina RAILROAD RETALIATION REPORT intends to report on future developments concerning the strong safeguards that Congress provided for Railroaders under the amended version of Section 20109 - whistleblower protection. Keep us posted, and we will continue to make every effort to keep you informed, protected, and fully compensated.
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
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
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- 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
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- Lessons From Our Steel Driving Hero
- The Real Meaning Of Labor Day
- Labor Day
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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
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- 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
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- 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
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- Record Verdict For Western Michigan - $7,263,000 For Injured Trackmen
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- Verdict For Railroad Worker With Neck Injuries Caused By Defective Handrail
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- 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
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- 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