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Straight
Track #260
RAILROAD
RETALIATION
REPORT
Part 4:
CONGRESS STANDS UP FOR RAILROADERS
By James L. Farina,
Alan J. Fisher and Steven P. Garmisa
In the first five
months after the Federal Rail Safety Act was amended by Congress to
strengthen protections for railroad employees, four complaints
were filed with the Occupational Safety and Health Administration under
the revised law. As of January 3, 2008, three of the complaints filed
by railroaders under 49 United States Code, Section 20109 were still
being investigated by OSHA. The fourth complaint, filed by a CSX
dispatcher, was dismissed. OSHA concluded that the new whistleblower
protections did not apply because the CSX dispatcher was fired before
the new law went into effect on August 3, 2007.
Does this mean that
only three Railroaders were the victims of unlawful retaliation
by railroads after Section 20109 was amended? We think it is more
likely that awareness of the new law has not yet flowed from The
Congressional Record to rail yards. We hope the flow of information from
Straight Track will become a valuable reservoir of knowledge and
awareness, so that railroaders can exercise their new rights under
Section 20109.
To exercise your new
rights, you need to know procedures and remedies under the new statute.
We hope the following information will serve as a guide to help
railroaders understand their rights under the statute.
Complaints
An employee who
alleges that he or she was fired, disciplined or otherwise discriminated
against in violation of the new whistleblower law can file a complaint
with the Secretary of Labor.
OSHA acts on behalf
of the Secretary of Labor in handling the new whistleblower program.
The Initial Showing
When a railroader
files a complaint under Section 20109, OSHA first looks for whether the
employee made an initial showing that protected activity
was a contributing factor in the railroad’s alleged retaliation.
If OSHA decides that
the employee failed to make the required initial showing, it will
dismiss the complaint without conducting an investigation.
And, even if OSHA
concludes that a railroader made the required initial showing, no
investigation will be conducted if the railroad convinces OSHA, by “clear
and convincing evidence”, that the railroad would have taken the
same disciplinary action even if the railroader had not engaged in
protected activity.
For example, if a
railroad employee alleges he was fired in retaliation for reporting
violations of federal safety rules, but the railroad proves by clear and
convincing evidence that it fired the employee because it discovered
that he was drinking on the job, OSHA can dismiss the complaint without
an investigation.
Clear and Convincing
Evidence
In most civil cases,
including lawsuits based on the Federal Employers’ Liability Act, the
“burden of proof” is “a preponderance of the evidence.” In plain
language, this means that the plaintiff wins if he or she convinces the
jury that the required facts are probably true. In criminal cases, the
prosecution must prove its case “beyond a reasonable doubt.”
The “clear and
convincing” requirement that Congress imposed on railroads is
somewhere in between the heavy “burden of proof” in a criminal case, and
the much lighter “burden of proof” in civil cases. This means Congress
wanted to make it difficult for railroads to escape liability for
retaliation, but not as hard as having to prove guilt in a criminal
case.
Direct and
Circumstantial Evidence
You would have
“direct evidence” of a violation of Section 20109 if a supervisor
bluntly declared: “We are retaliating against you for sending reports to
the federal government.” Direct evidence of this magnitude usually is
not available. However, circumstantial evidence can be very
persuasive. If you did not see someone walk across a field, for example,
you would not have direct evidence of that fact. But if you see human
footprints in fresh snow, those circumstances are strong “circumstantial
evidence” that someone walked across the field after it snowed. You did
not see it, but you proved it with circumstantial evidence.
Ruling against
Railroads
After an
investigation, OSHA will not rule against the railroad unless the
employee proves that his or her protected activity was a “contributing
factor” in the railroad’s decision to retaliate against the employee.
And even if OSHA
decides there was unlawful retaliation, OSHA will not punish the
railroad if it proves, again, by clear and convincing evidence, that it
would have taken the same action against the employee even if he had not
engaged in protected activity.
Deadlines
The complaint must
be filed with OSHA within 180 days after an alleged violation.
Then, if OSHA fails to issue a final decision within 210 days after the
filing of a complaint, and the delay was not due to bad faith by the
employee, the employee can file a lawsuit in federal court, with a right
to trial by jury.
Remedies
If OSHA rules
against the railroad, the employee is “entitled to all relief
necessary to make the employee whole.”
Among other things,
OSHA can order the railroad to reinstate the employee with seniority;
pay lost wages, with interest; give the employee enough money to cover
any other losses caused by retaliation, including reimbursement for the
fees and expenses of the lawyer who represented the employee in the
whistleblower case. Plus, OSHA can award up to $250,000 in punitive
damages against the railroad.
Appeals
OSHA’s ruling
becomes final unless there is an objection within 30 days. After OSHA
issues its ruling, though, the railroad or employee can request a trial
before an Administrative Law Judge.
Summary
Here is a re-cap of
what you have to prove in order to win your case under Section 20109:
1.
Protected Activity - You engaged in activity that is protected
under the statute.
2.
Employer Knowledge - Your employer knew or suspected that you
engaged in protected activity.
3. Adverse Action
- You were fired, demoted, suspended, reprimanded, or suffered any other
type of detrimental action from your employer.
4. Connection
- There was a connection between the protected activity and the adverse
action. If there is no direct evidence of the required connection, this
can be established circumstantially.
In a whistleblower
case, the type of circumstances that help establish the required
connection between (1) protected activities and (2) retaliation include
such things as:
• Any animosity
or hostility expressed by railroad supervisors toward the protected
activity.
• The closeness
in time between the protected activity and the retaliation.
• Whether there was
different treatment of the employee who filed the complaint
compared to other similarly-situated employees.
• Whether the
railroad use false testimony or manufactured evidence.
And,
• Whether the
railroad’s defenses were obviously phony.
Conclusion
The Hoey & Farina
Railroad Retaliation Report
intends to report on future developments concerning the
strong safeguards that Congress provided for Railroaders under the
amended version of Section 20109. Keep us posted, and we will continue
to make every effort to keep you informed, protected, and fully
compensated.
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