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Straight
Track #260
RAILROAD
RETALIATION
REPORT
Part 1:
CONGRESS STANDS UP FOR RAILROADERS
By James L. Farina, Alan J. Fisher and
Steven P. Garmisa
Stepping in to protect
railroaders who have the courage to report on violations of federal
safety regulations, Congress enacted a powerful new law on
August 3, 2007.
The new legislation – amending the Federal Rail Safety
Act (49
United States
Code, Section 20109) – follows up on recommendations made by the 9/11
Commission after the horrific terrorist attacks on
September 11, 2001.
The 9/11 Commission
realized the
U.S.
rail system is a critical target for terrorists, and railroaders are
front line soldiers in the new war. Thus, to help strengthen our
national defenses, Congress decided to support railroaders who report
violations of federal safety laws and regulations. The new statute, “The
Implementing Recommendations of the 9/11 Commission Act of 2007”,
protects railroaders from retaliation for “blowing the whistle” when
railroads violate federal safety laws and regulations.
Congress also provided
important new safeguards for railroaders who are faced with hazardous
working conditions. These safeguards include the right to refuse to work
in dangerous situations. But, a detailed set of requirements
must be followed before claiming your right under the statute to
refuse to work under hazardous conditions. The text of the revised
version of Section 20109 is available at
http://www.osha.gov/dep/oia/whistleblower/acts/frsa.html
As you know, knowledge
is power for Railroaders in fighting railroad misconduct, intimidation
and retaliation. So, this inaugural issue of the Hoey & Farina
Railroad Retaliation Report
is the first of a four-part discussion of the amended version of
Section 20109.
It is important to note
that historically, the Federal Railroad Administration (“FRA”) handled
complaints of retaliation from railroad employees. Clearly unhappy with
the FRA’s poor performance in protecting railroad employees from
retaliation, Congress put the Department of Labor and the Occupational
Health & Safety Administration (“OHSA”) in charge of administering the
new whistleblower-protection program. Section
20109(c)(1).
Under the new law, it is
illegal for a railroad to retaliate against an employee for reporting
what he or she reasonably believes is a violation by the railroad of
any federal safety law or regulation. Section 20109(a)(1).
The new protection is not limited to cases where the railroad retaliates
against an employee for reporting violations to the government.
Instead, the new law reaches out to protect employees who report
violations to “a person with supervisory authority over the employee.”
Section 20109(a)(1)(C).
Accordingly, if you
inform a railroad supervisor that the railroad violated a federal
safety law or regulation, and the railroad retaliates in response, you
can then file a complaint with OSHA.
It is important to remember that you must file a complaint with
OSHA within 180-days of the retaliation.
Section 20109(c)(2)(A)(ii).
Another important
section of the new law says the railroad is liable if the retaliation
was based “in whole or in part” on the employee’s conduct in
blowing the whistle on railroad misconduct. Section 20109(a). So,
even if the railroad’s retaliation is also based on the fact that
the employee filed a claim for personal injury under the Federal
Employers’ Liability Act (“FELA”), the new whistleblower protection
applies if the retaliation was based “in part” on the
employee’s conduct in blowing the whistle on the railroad’s violation of
federal safety laws or regulations.
To give added muscle to
this new protection for whistleblowers, Congress gave OSHA authority to
order the railroad to re-hire a fired employee, and restore lost
seniority; compensate the employee for lost pay, with interest;
pay for all other losses caused by the retaliation; reimburse the
employee for expenses incurred in fighting the retaliation,
including reimbursement for lawyer’s fees; and, where the
railroad’s behavior is outrageous, give the employee up to $250,000
as punishment for the misconduct. Section
20109(d).
Another important
section of the new law protects railroaders from retaliation for
reporting personal injuries. Section 20109(a)(4). In
testimony before Congress last October, the head of the Federal Railroad
Administration explained that the new whistleblower protection applies
when a railroad retaliates against an employee for notifying the
railroad of an on-the-job injury. As Joseph H. Boardman testified:
“Discriminating
against an employee for (among other things) notifying, or attempting to
notify, the railroad carrier or FRA of a work-related personal injury or
work-related illness of an employee is prohibited
under 49 U.S.C. 20109,
as amended by section 1521 of the Implementing Recommendations of the
9/11 Commission Act of 2007.” [Emphasis added.]
One of the significant
provisions added by Congress in the new statute was to specify that if
OSHA does not rule on a complaint within 210 days after it was filed,
and the delay is not the result of bad faith by the employee, then
the employee gets to sue the railroad for retaliation in federal court.
Section 20109(c)(3).
Congress realized that
citizens of the
United States
will not be safe from future terrorist attacks if railroad employees are
afraid of reporting violations of federal safety laws and regulations.
As amended, Section 20109
holds out hope of strong
protection for railroaders who blow the whistle when railroads step out
of line.
The next three issues of
the Hoey & Farina Railroad
Retaliation Report continues our introduction to this crucial
new law.
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