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Straight
Track #260
RAILROAD
RETALIATION
REPORT
Part 6:
CLARIFYING PROCEDURES UNDER SECTION 20109
By James L. Farina,
Alan J. Fisher and Steven P. Garmisa
Last August, Congress
gave the United States Secretary of Labor responsibility for
investigating retaliation claims under Section 20109 of the Federal Rail
Safety Act. And, the Occupational Safety and Health Administration (“OSHA”),
as part of the Department of Labor, will be handling retaliation claims
under Section 20109.
Laws such as Section
20109 include substance and procedure. Besides knowing the rights
granted to railroad employees by Section 20109, you also need to know
something about the procedures for filing retaliation claims.
To help understand the
new law, this issue of the Railroad Retaliation Report presents
five important procedural questions, plus preliminary answers. These
are preliminary answers because OSHA has not yet issued regulations that
specifically govern retaliation claims from railroad employees under
Section 20109. Accordingly, our preliminary answers are based on how
OSHA has handled complaints from non-railroad employees.
Besides handling
retaliation cases under the Occupational Safety Act, OSHA has also been
assigned the task of handling retaliation claims filed under 13 others
statutes – including laws that protect airline, trucking and
asbestos-removal employees. Remember, if you intend to pursue a
retaliation complaint under Section 20109, you need to know how to
proceed, and how OSHA has responded to complaints in the past.
1. How do I file a
retaliation complaint?
The best practice is to
send a written complaint to the regional OSHA office where you
live, or where the railroad violated Section 20109.
2. What does the
complaint have to include?
OSHA recommends the
following in a retaliation complaint:
1. Your full name,
address and phone number; plus your employer’s name, address and phone
number.
2. The date the
complaint is being filed, plus the date of the alleged adverse action.
3. A brief summary
of the alleged discrimination or retaliation.
This brief summary must
include the following:
(a) The facts that show
you engaged in protected activity (e.g., reporting a personal injury).
(b) The facts that show
your employer knew that you engaged in protected activity.
(c) Supporting evidence
that shows you suffered adverse employment action or discrimination
(e.g., firing, demotion, suspension or reprimand).
(d) Supporting evidence
that shows the adverse action was caused, at least in part, by the fact
that you engaged in protected activity.
3. What does OSHA do
when it receives a complaint?
As soon as OSHA receives
the complaint, a supervisor reviews it to see if (1) the appropriate
jurisdictional requirements have been satisfied; (2) it was filed on
time; and (3) the complaint contains the required factual allegations.
When OSHA opens up a
file on a complaint, a supervisor will send a letter to you to let you
know that the complaint has been received. This letter will give the
official name and number of the case, plus the name of the investigator
who will be handling the case.
An OSHA investigator
might contact you, as a preliminary matter, to obtain additional
information. And, OSHA may send a questionnaire to the complainant
asking for additional information.
An OSHA supervisor will
also send a letter to the railroad notifying it of the complaint, and
requesting that the railroad submit a written position-statement.
Sometimes, though, if OSHA plans on conducting a surprise inspection, it
delays notifying an employer of a complaint.
4. When does the clock
start running on the 180-day deadline for filing a retaliation complaint
under Section 20109, and when does it stop?
The deadline for filing
a retaliation complaint under Section 20109 usually starts running from
the date of the adverse action. A complaint must be received by
OSHA within 180-days of the adverse action. If the adverse action or
discrimination is continuing – such as prolonged harassment or
blacklisting – the time for filing a complaint starts running from the
last act of discrimination.
Sometimes, even though a
complaint is mailed before the deadline, it is received by OSHA
after the deadline expires. When a complaint is sent by mail, the
date of filing is the date of the postmark. So, be sure to ask
the U. S. Postal Service for proof of the date of mailing. If the last
day of the deadline falls on a weekend or a federal holiday, the next
business day will be the final day for filing.
Complaints filed after
the statutory deadline will usually be closed, without any
investigation.
5. Is a railroad
employee ever entitled to an extension of the 180-deadline for filing a
retaliation complaint under Section 20109?
Failure to file a
complaint on time is not excused if it was based on ignorance of
the deadline, or the filing of another claim, such as a personal injury
case, or a grievance. OSHA may grant an extension of the deadline for
filing a retaliation complaint only in extraordinary
circumstances, depending on the facts of the particular case. In
actuality, don’t count on an extension.
OSHA might extend the
deadline for filing a retaliation complaint if:
1. The employer
concealed the existence of adverse action from the employee.
2. The employee was
unable to file a retaliation complaint on time because of serious
illness or injury.
3. The employee was
unable to file within the deadline because of a natural disaster,
such as a snowstorm or flood. But the conditions have to be so bad that
a reasonable person would not have been able to file a complaint on
time.
4. The employee
mistakenly filed the complaint with another government agency that does
not did not have authority to grant relief to the employee.
Conclusion
Filing a retaliation
claim under Section 20109 is a serious undertaking. You need to know the
substance and procedures of the new law, and discuss your case with a
Union Representative and/or Designated Legal Counsel before filing a
retaliation claim.
Unfortunately, there are
railroad supervisors who will make every effort to concoct an excuse to
fire an employee they don’t want on the property. And, even if you
eventually prove that the firing was in retaliation for filing a
complaint with OSHA, the railroad can still put you out of work for a
lengthy period of time as you progress your claim under the collective
bargaining agreement.
If you intend to pursue
a retaliation complaint under Section 20109, you need to know how to
proceed, and how OSHA, to the best of our knowledge, will handle the
case. However, railroad employees who are the victims of retaliation
today cannot wait until OSHA issues specific regulations for claims
by railroad employees.
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