Can you sue BNSF for an on-the-job injury?
Yes. If you work for BNSF Railway and you were hurt on the job, you bring your claim under the Federal Employers' Liability Act (FELA), not a state workers' compensation system. BNSF says so in its own annual report, which states that personal injury claims by its employees "are subject to the Federal Employers' Liability Act (FELA) rather than state workers' compensation laws." In most cases you have three years from the injury to file suit, and a much shorter 180-day window if BNSF retaliates against you for reporting it.
FELA makes every railroad that operates in interstate commerce liable for an employee’s injury "resulting in whole or in part" from the negligence of its officers, agents or employees, or from a defect in its cars, engines, appliances, track or other equipment that is due to its negligence (45 U.S.C. § 51). It is a fault-based law. You have to show that BNSF was negligent, and in return a jury decides what your losses are worth.
The bar for connecting BNSF’s negligence to your injury is lower than in an ordinary injury case. In CSX Transportation v. McBride (2011), the Supreme Court approved telling FELA juries that a railroad caused or contributed to an injury if its negligence played a part, no matter how small, in bringing the injury about. If you were partly at fault, your damages are reduced by your share, but your claim is not barred. And there is no reduction at all where BNSF’s violation of a safety statute contributed to the injury (45 U.S.C. § 53).
Two more rules work in your favor. BNSF cannot defend by arguing you assumed the risks of a dangerous job when its negligence played a part in the injury (45 U.S.C. § 54). And any contract, rule or device meant to exempt the railroad from FELA liability is void, although the railroad may set off certain amounts it paid toward insurance or benefits for the same injury (45 U.S.C. § 55).
BNSF employs about 35,000 people, roughly 30,000 of them union members, over more than 32,500 route miles. The railroad traces its history to the 12-mile Aurora Branch Railroad, founded in Illinois in 1849, and it still runs about 1,538 route miles in Illinois alone. FELA protects every craft on that network the same way, from conductors, engineers and brakemen to section laborers, carmen, machinists and clerks. Our FELA railroad injury page explains the law in full.
What happens after you report an injury to BNSF?
Report the injury. Railroad rules generally require a prompt report, and federal law protects you for making one. What follows usually comes in three parts, and each is a point where the railroad starts building its own file on your claim.
The injury report
The personal injury report you fill out becomes evidence. Describe what happened and every part of your body that hurts, plainly and accurately. Name the equipment, the location and the people who saw it, and keep a copy if you can. A report that leaves out a body part or a defective tool can be used later to argue the injury came from somewhere else.
The claim agent
A BNSF claim representative may call or visit within days. The claim agent works for the railroad’s claims department, and the job is to evaluate and resolve the railroad’s exposure, not to look out for you. Expect requests for a recorded statement, for signed medical authorizations, and sometimes an early settlement offer. In most cases you can ask to speak with a lawyer before you give a recorded statement. Do not sign a release before you know the full extent of your injury, because a release usually ends the claim for good. Our article on the lies railroad claim agents tell describes a federal case in Minnesota where BNSF employees who signed releases without counsel could not undo them.
The company doctor
BNSF has its own medical department, and a supervisor may suggest a doctor the railroad prefers. Get the care you need, and tell your own doctor everything. The railroad’s medical staff work for the railroad. Under the Federal Railroad Safety Act, BNSF may not deny, delay or interfere with your medical or first aid treatment, must promptly arrange a ride to the nearest hospital that can treat you if you ask for one, and may not discipline you for following your treating physician’s orders (49 U.S.C. § 20109(c)). Our article on who is really paying your medical bills explains why to sort out coverage early.
Coworkers who saw what happened are protected too. Federal law voids any railroad rule meant to stop employees from voluntarily giving information about an injury to the injured worker or their lawyer, and it makes disciplining a coworker for doing so a crime (45 U.S.C. § 60).
In the first days after an injury on BNSF, a few steps protect your claim.
- Get medical care, and tell every provider that the injury happened at work.
- Write down the names of everyone who saw it or came to the scene.
- If you can do it safely, photograph the location, the equipment and its car or unit numbers, and your injuries.
- Keep copies of the injury report, medical records, pay stubs and any discipline notice.
- Do not sign a release or accept a settlement before you have talked to a lawyer.
Can BNSF discipline you for reporting it?
No. The Federal Railroad Safety Act (FRSA) makes it illegal for a railroad to discharge, demote, suspend, reprimand or in any other way discriminate against an employee for notifying the railroad of a work-related injury or illness (49 U.S.C. § 20109(a)(4)). The same law protects you for reporting a hazardous safety condition, for refusing to violate a federal safety rule and for asking for medical treatment.
Retaliation after an injury report often arrives as a charge letter and an investigation hearing over a rule you supposedly broke. If that happens, move quickly. A complaint must be filed with the Secretary of Labor, through OSHA, within 180 days of the retaliation (49 U.S.C. § 20109(d)(2)(A)(ii)). If the Department of Labor has not issued a final decision within 210 days and the delay is not your fault, you can take the case to federal court and ask for a jury (§ 20109(d)(3)). See our FRSA railroad whistleblower page, and Hurt, Broke and Fired on how railroads use discipline against injured workers.
If you win an FRSA case, the law provides reinstatement with the seniority you would have had, back pay with interest, and compensatory damages including litigation costs and reasonable attorney fees. It also allows punitive damages of up to $250,000 (49 U.S.C. § 20109(e)).
Where can you file a FELA case against BNSF?
Generally where you were hurt, or in Texas or Delaware, where BNSF is "at home." BNSF is the railroad that narrowed the choice. FELA lets an injured worker sue in federal court in the district where the railroad resides, where the injury happened, or where the railroad is doing business when the suit is filed, and state courts can hear FELA cases too (45 U.S.C. § 56).
In BNSF Railway Co. v. Tyrrell (2017), two workers who neither lived in Montana nor were injured there sued BNSF in Montana state court. Montana’s Supreme Court let the cases go forward because BNSF was doing business in the state, with more than 2,000 miles of track and about 2,100 workers there. The U.S. Supreme Court reversed. It held that § 56 sets venue for federal court and does not address personal jurisdiction, and that due process does not let a state hear claims unconnected to it against a corporation that is not at home there. BNSF is incorporated in Delaware and has its principal place of business in Texas.
That leaves the state or federal district where the injury happened, and Texas or Delaware. A later decision, Mallory v. Norfolk Southern (2023), upheld a Pennsylvania law that treats registering to do business there as consent to be sued there, which may open another door in some states. We explain it on our Norfolk Southern page. The court you choose affects the jury, the rules and the timeline, so it is one of the first decisions in a case. We are in Chicago and represent BNSF employees wherever they were hurt.
How long do you have to file against BNSF?
Three years from the day the claim accrued (45 U.S.C. § 56). For a single accident, that is usually the day it happened. For an injury that builds over time, such as cumulative trauma, hearing loss or an illness from exposure, the clock generally starts when you knew, or with reasonable diligence should have known, about the injury and its connection to your work. A formal diagnosis is not needed to start it. In Sweatt v. Union Pacific (7th Cir. 2015), a track worker lost his shoulder and hand claims because his pain and its link to his work were apparent more than three years before he sued. Our guide to the FELA statute of limitations walks through the rules. A retaliation complaint under the FRSA has its own 180-day limit.
What is our record against BNSF?
$740,282.26
Jose Villa was a section laborer on a rail gang near Woodburn, Iowa. BNSF had installed lock spikes backwards, so he was ordered to pull them with a hydraulic spike puller, which kicked back and knocked him to the ground. He was diagnosed with herniated discs and had surgery. Months before trial, BNSF offered $30,000, less $15,000 in paybacks, and demanded his resignation. During trial it raised the offer to $240,000. Mr. Villa turned it down, and after three hours of deliberation the federal jury in Des Moines returned a verdict of $740,282.26, less 5 percent. Read the full case story.
Every case is different, and a past result does not predict the outcome of yours. What Villa shows is how we work. We prepare each case as if it is going to trial, because a railroad’s offer moves when it believes a jury will hear the case.
