Whistleblower and FRSA Claims

The purpose of the Federal Rail Safety Act is “to promote safety in every area of railroad operations” 49 U.S.C. § 20109. Railroads have historically fired and retaliated against injured railroad workers and railroad workers that report injuries. Because of this, Congress amended the FRSA in 2007 to include anti-retaliation provisions. Under the amended FRSA a railroad carrier “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 enumerated protected activities. Our railroad attorneys can bring claims under the FRSA if certain circumstances are present.

For example, under subsection (c)(2) “a railroad carrier may not discipline, or threaten to discipline an employee for . . . following orders or a treatment plan of a treating physician.” This language is clear and protects railroad workers from being disciplined for following their doctor’s treatment plan. If the railroad disciplined the railroad, in whole or in part, to the employee’s treatment plan related to a work related injury, the FRSA allows protections.

Other examples of protections under the FRSA railroad whistleblower statute include:

  • Refusing to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security. For example, if a conductor or brakeman were told by a supervisor to leave railcars unsecured or forego a federally mandated air-brake test and were disciplined, they would have protections under the FRSA;
  • refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties. For example, a conductor or engineer is instructed to move a set of cars that they know to be defective and dangerous to move. Knowing it would be unsafe to move the cars and refuse to do so.
  • Railroad workers who report a hazardous safety or security condition or cause an FRA investigation related to railroad safety or security, have protections from retaliation by the railroad. For example, if a conductor reported an unsafe walking conditions or dangerous ballast, or submit a SIRP, they have recourse if the railroad harasses or takes adverse actions.
  • Railroad workers have protections from being disciplined when they notify, or attempt to notify, the railroad carrier or the FRA of a work-related personal injury or work-related illness. For example, if a conductor is hurt tying a handbrake or throwing a switch and reports the injury to the railroad, they have protections under the FRSA.
  • Cooperating with a safety or security investigation by the FRA, the Secretary of Homeland Security, or the National Transportation Safety Board;
  • Furnishing the FRA, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency with facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with railroad transportation;

These provisions provide protections for railroad workers for reporting injuries and unsafe conditions and acting as witnesses. These protections were enacted by Congress in 2007 because of the railroad industry’s systemic harassment and abuse of railroad workers who were hurt at work and for those trying to make their workplace safer.

Additional protections were also added to prevent railroads from delaying and interfering with injured workers emergency medical treatment and subsequent treatment plans for on-duty injuries. These protections include:

  • “Medical treatment” “refers to the management and care of a patient over a period of time beyond initial injury and is dictated by the severity of the injury.”
  • “Treatment Plan” refers to “not only medical visits and medical treatment,” but also medication, therapy, and daily exercises.
  • “Prompt Medical Attention,” in the context of the statute means “punctual” and “without delay,” but should not be read to limit the statute to treatment immediately after an injury. 

If it can be proved that the railroad discipline a worker for one of these protected activities, there are remedies depending on the discipline and the situation, including:

  • Reinstatement with the same seniority status that the employee would have had, but for the discrimination
  • Backpay, with interest
  • Compensatory damages, such as pain and suffering and embarrassment
  • Litigation costs, expert witness fees, and reasonable attorney fees
  • Punitive damages up to the amount of $250,000

A good railroad attorney will know the protections of the FRSA and will be forthright with those with potential cases. It is critical to talk to a good railroad attorney as soon as possible a railroad workers believe they were disciplined for one of the protected activities above, as all claims must be filed with OSHA within six months.

Bolt Hoffer Boyd Law Firm has experienced attorneys with the skills and drive necessary to fight against railroads, protect your rights, and prove that your railroad injury was caused by a negligent railroad carrier. Because no two cases are alike, we specifically tailor our legal representation to give each and every client specialized legal to the specific facts of their claim and will not stop until justice is achieved. We are 100% dedicated to every client we take on, no matter how big or small the case. We handle each case with care and commitment to getting you the compensation you need to get back to life as you know it. Contact us at Bolt Hoffer Boyd Law Firm to schedule an initial consultation with our FRSA and Whistleblower attorneys today.