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The data is in. Since FY 2014, the number of OSHA whistleblower investigators shrunk by 25% while the number of complaints ballooned by 30%. In FY 2018 alone, 1,137 private statutory retaliation complaints were filed, the majority by railroad workers under the Federal Rail Safety Act, followed by long-haul truckers under the STAA. Of all the cases resolved in 2018, three quarters were dismissed or withdrawn. In 2018, 60 cases opted out of OSHA…
The Administrative Review Board provides further proof of the erroneous use of the phrase “intentional retaliation” in the 8th Circuit’s Kuduk decision. In Riley v. Dakota, Minnesota & Eastern Railroad, the ARB spells out why “intentional retaliation” simply does not apply to the FRSA’s contributing factor standard: Kuduk and its progeny hold that “the contributory factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” But this…
When a BNSF employee reports an on-the-job injury, the Railroad orders the employee to disclose medical information to a medical case manager. But when an employee reports a non-work related injury, the Railroad leaves them alone. BNSF employee Travis Klinger reported a work injury and was ordered to contact such a medical manager. When he declined to do so, he was suspended for “failure to comply with a direct order.” The Administrative Law Judge reversed…
The Federal Rail Safety Act is a “make whole remedy” statute, and a federal judge has clarified some important points regarding the range of remedies available to railroad employees who report injuries or safety hazards. O’Neal v. Norfolk Southern Railroad Company concerned an employee who fell from a chair because the seat was not properly bolted to the frame. After he reported both the injury and the hazardous safety condition, the Railroad accused him of…
What Is A “Good Faith” Refusal? Under subsection (a)(2) of the Federal Rail Safety Act, it is protected activity for an employee “to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety.” Now comes a Circuit Court decision clarifying what qualifies as “a refusal” to violate a FRA safety regulation. In Rookaird v. BNSF Railway Company, the 9th Circuit Court of Appeals explains…
A $1.15 Million SPA Whistleblower Settlement It took four long years, but a full measure of justice has come to my client Captain John Loftus. John was the Captain of a 850 foot long container ship who took safety seriously. After his employer ignored his internal reports of unsafe conditions, John went outside to the American Bureau of Shipping and Coast Guard, who forced Horizon Lines to correct the conditions. Horizon then found a pretext…
What is Adverse Action? The question arises, in order to qualify as an “adverse action” under the Federal Rail Safety Act, does a railroad’s investigation into an employee’s actions have to result in actual discipline? What if the charge is eventually dropped? No harm no foul? A recent district court decision clarifies the matter: The Administrative Review Board has repeatedly held that charging an employee with a policy violation, instituting an investigation, or simply…
While railroaders and truckers generate the most cases, seamen and merchant mariners also are protected from retaliation when they blow the whistle on safety issues. The Seaman’s Protection Act prohibits retaliation against any seaman who reports a work related injury or who reports to the U.S. Coast Guard or American Bureau of Shipping “that a violation of a maritime safety law or regulation has occurred.” In 2013 Captain John Loftus brought a landmark SPA case…
Federal Rail Safety Act subsection (c)(1) prohibits railroads from denying, delaying, or interfering with the medical treatment of employees “injured during the course of employment.” In a fact driven decision, the Second Circuit Court of Appeals sidesteps deciding the temporal scope of that protection (just first aid or entire course of treatment?) and its interpretative standard (can a railroad’s denial of a medical claim payment constitute interference?). Instead, the Court merely commented: “We suggest that…
The FRSA is a “make whole remedy” statute, so the question arises: can OSHA force a recalcitrant railroad to train its managers so they comply with the statute going forward? The short answer is: yes, when the facts call for it. The long answer is found in Administrative Law Judge Timothy J. McGrath’s decision in Giuliano v. CSX Transportation, Inc. OSHA found CSX violated JJ Giuliano’s FRSA right to report safety hazards, and in…