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Straight
Track #205
Retaliatory Discharge:
A Court Strikes BackRobert J. Drummond, Attorney
Hoey & Farina
1-888-425-1212
drummond@hoeyfarina.com In Straight Track #159
Hoey & Farina Attorney George Brugess wrote about the status of the law of retaliatory discharge. The Kansas Supreme Court has recently addressed this wrong and its relation to the Federal
Employers' Liability Act (FELA). |
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The Kansas Supreme Court should be commended for its well reasoned opinion, and the inclusion of the rights of railroad workers under this doctrine.
Larry Hysten, a carman for the BNSF in Topeka, began to experience back pain. He marked off because of the pain and properly informed his supervisors of his medical condition. He also stated that he did not know the cause of his condition, and whether or not it was work related. His supervisors then began to pressure him to disclose whether it was, or was not, work related. Larry continued to state that he did not know. His supervisors made out a personal injury report and conducted a BNSF accident analysis. The accident analysis required Larry to determine how he was hurt on the job. He again advised that he was uncertain of the cause, but stated it could have occurred while putting on an air hose.
When he was released to return to work he was placed in the "Transitional Work
Program". "TWP" accommodates employees who do not have work-related injuries. The supervisors again pressured him to declare whether his condition was work related or not. At this point he felt that he must state it was work related to preserve his rights under the FELA. The railroad then charged him with the failure to report a personal injury, and fired him.
Larry's firing was reversed by a Public Law Board. However, he did not receive back pay. He then filed a suit for retaliatory discharge for exercising his rights under the FELA.
The first court to hear this case dismissed it, stating that Kansas public policy did not protect railroad workers. Hysten v. BNSF, 196
F.Supp 2d 1162. The Federal Court of Appeals, using a special procedure, referred this question to the Kansas Supreme Court.
The Kansas Supreme Court stated that public policy requires that railroad workers be protected, and that the remedy under the Railway Labor Act (RLA) did not bar the claim. This decision is significant for two reasons.
First, the Court's analysis of this issue is perhaps the most well reasoned to date. Second, the Court holds that dismissal in retaliation for reporting an injury is a matter that can be presented to a jury in Court. The Kansas Supreme Court refused to hold, as many other courts have, that the RLA is your only remedy.
"Kansas has a 'thoroughly established' public policy supporting injured workers' rights to pursue remedies for their on-the-job injuries and opposing retaliation against them for exercising their rights. It matters not that the vehicle for that exercise is a federal rather than a state statutory
provision."
This Court refused to treat railroaders differently than other workers. Each state has its own law related to this issue. If you have questions, please contact Hoey & Farina, Designated Legal Counsel, at 1-888-425-1212.
Read the full opinion of the Kansas Supreme Court.
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