More and more, railroads are outsourcing work that railroad workers previously performed. Not only are non-transportation jobs being contracted out, many of the Class I railroads are contracting with short-line or regional railroads to perform train moves, switching and other transportation services.
Practically every railroad that operates an intermodal yard contracts the management of the yard out to a private company, usually a truck transportation company. Even when the railroad owns the property and unloading equipment, ramps are typically operated by an outside management company.
More Outside Railroad Contractors
So it goes, and the more railroad contractors that are present on railroad property, the more potential for conflict. Inevitably, railroaders are being injured as a result of the negligence of these outside contractors. Special rules apply when an outside contractor injures a railroad worker.
Complicating the scenario is the standard practice that outside contractors are required to secure railroad protective insurance indemnifying the railroad for the wrongful acts of the contractor. This complicates matters because generally when an injury occurs, the railroad will hand the case to the insurance company and close its file. Then the injured employee is left to negotiate with a non-railroad insurance claims adjuster who typically never heard of the FELA – Federal Employers’ Liability Act. Since the railroad has no financial stake in the claims, no offers of advances or wage continuation are forthcoming. Today, most insurance companies won’t even deal with a claimant until a suit is filed and the case is ready for trial.
Outside Railroad Contractor is Liable Too
In most cases, the law provides that a railroader injured as a result of the negligence of an outside contractor has a right to pursue claims against both the contractor under state common law negligence and the railroad under the FELA.
Early on in the history of the FELA the U.S. Supreme Court gave a broad, expansive definition to the term “agent” as used in § 51 of the FELA. Under state common law, the definition of agent is quite limited; most contractors would be considered “independent contractors” and not agents. Generally, one who hires an independent contractor under state law is not responsible for its negligence.
Under the expansive definition of agent under the FELA most Independent contractors are agents and the railroad is therefore liable for the contractor’s negligence. The test generally employed to determine agency under the FELA is whether the contractor is involved in what would be traditionally considered an operational activity of the railroad.
The operational activity of the railroad consists largely of those things which the railroad traditionally did itself, but which others are now doing. For example, railroads traditionally deadheaded employees on trains—now they hire cab companies to do that; railroads formerly had bunk houses to lodge crews on layover—now they contract with motels to provide this service; yard operations formerly done by the line haul carrier may now be performed by a switching company; TOFC services performed by railroad employees are now done by a trucking company whose employees could, under the right circumstances, still be considered railroad employees under the FELA.
Recent cases involving this principle include a cab case where the railroader was injured as a result of the negligence of the independent cab company; a Class I yard conductor struck by an engine operated by a shortline crew; and a clerk who tripped over debris left by a roofing contractor.
Keep in mind the law provides that every claim must be filed in court within a specified time or the claim is lost. This time period varies from claim to claim and from state to state. For this reason, the decision to consult with a FELA lawyer after a railroad work injury can be crucial.
If you are injured and the negligence of an outside contractor may have played a role, contact Hoey & Farina, FELA Railroad Union Designated Legal Counsel, as soon as possible to protect your rights and your future.