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Straight
Track #260
RAILROAD
RETALIATION
REPORT
Part 2:
CONGRESS STANDS UP FOR RAILROADERS
By James L. Farina,
Alan J. Fisher and Steven P. Garmisa
Following up on
urgent recommendations from the 9/11 Commission for protecting the
United States from future terrorist attacks, Congress has provided
critical new protection for railroaders who “blow the whistle” on
railroad failure to eliminate hazardous conditions and comply with
federal safety and security rules.
Amending the Federal
Rail Safety Act, 49 United States Code, Section 20109, the new law
prohibits railroads from retaliating against employees for railroad
misconduct in several common situations. And, it gives federal
administrators a heavy stick to penalize railroads that step out of
line. The complete text of the new version of Section 20109 is
available at
http://www.osha.gov/dep/oia/whistleblower/acts/frsa.html
Here are some basic
questions and answers regarding the new law.
Q. What do you have
to prove to win a case under Section 20109?
A.
Under the new statute, you have to prove that (1) you engaged in
protected activity; (2) the railroad knew or suspected you
engaged in protected activity; (3) you suffered some kind of adverse
or detrimental action from the railroad; and, (4) there was a
connection between the adverse employment action and your protected
activity.
Q. Is the new
statute limited to situations where an employee was fired?
A.
No. The new statute does not just apply to an employee who
is fired. As amended on August 3, 2007, Section 20109 says that a
railroad “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 various specified protected
activities. Section 20109(a).
After numerous
Congressional committee hearings and meetings, it became evident to the
members of Congress that railroads will plot an infinite number of ways
to retaliate against employees who engage in protected activities. So
the new law was broadly written to cover every conceivable type of
adverse employment action.
Q. What kinds of
actions by railroaders are considered protected activities by the new
statute?
A.
There are four major categories of protected activities under the
law:
(1) Reporting
violations of federal safety laws, injuries, hours on duty, hazardous
conditions, and accidents. Sections 20109(a)(1), (4), (6) and (a)(7);
plus Section 20109(b)(A).
(2) Declining
to violate or assist in the violation of any safety or security law.
Section 20109(a)(2).
(3) Cooperating
with federal investigations. Section 20109(a)(5). And,
(4) Refusing
to put up with hazardous conditions. Section 20109(c)(1).
Q.
What is “reporting” activities are protected by the new law?
A.
The protected
reporting activities include (1) reporting violations of federal
safety or security laws or regulations; (2) reporting personal
injuries; (3) accurately reporting hours worked; (4)
reporting hazardous conditions; and (5) reporting accidents.
Sections 20109(c)(1), (4), (7), and Section 20109(b)(A).
Significantly, the
protection for reporting violations of federal safety or security laws
is not limited to situations where an employee reports violations of the
Federal Rail Safety Act. Instead, Section 20109 protects railroaders who
report that their employer violated any federal safety or
security law, rule or regulation. Section 20109(a)(1).
Even if it turns out
that the railroad was not engaged in any violations, a railroader
who blows the whistle is protected if he or she reasonably
believed that the railroad breached federal safety or security laws
or regulations. Section 20109(a)(1).
Q. What constitutes
“assisting in an investigation”?
A.
The new statute prohibits railroads from retaliating against employees
who assist in federal investigations into whether the railroad violated
any federal safety or security laws. Section 20109(a)(1).
Q. Where do I
report a violation of the new statute?
A.
The new statutory protection applies when a railroad employee reports
violations of federal safety and security laws to federal,
state, or local regulatory or law enforcement agencies.
Section 20109(a)(1)(A).
Greatly
strengthening this statutory protection, the amended law also applies
when a railroad employee reports the railroad’s violation of any federal
safety or security law to “a person with supervisory authority over
the employee or such other person who has the authority to
investigate, discover, or terminate the misconduct.” Section
20109(a)(1)(C).
In other words, the
amended statute provides protection when reports of violations of
federal safety or security laws are submitted to railroad supervisors.
Q.
What happens if I report a personal injury? Is there any
protection for me under the new statute?
A.
The new statutory
protection applies when a railroad retaliates against an employee for
notifying or attempting to notify “the railroad carrier or the Secretary
of Transportation of a work-related personal injury or
work-related illness of an employee.” Section 20109(a)(3).
Q. How does the new
statute apply to “reporting hours on duty”?
A.
The new protection further applies when a railroad retaliates against an
employee for accurately reporting hours on duty. Section 20109(a)(7).
The next issue of
Straight Track, Part 3 of our introduction, will examine the important
new protections that Congress provided for employees who refuse to
tolerate hazardous workplace conditions. And, Part 4 of the Hoey
& Farina Railroad Retaliation
Report will discuss procedures, remedies and defenses under
the new law.
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