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Straight
Track #260
RAILROAD
RETALIATION
REPORT
Part 9: NEW
FEDERAL LAW PROTECTS LOCAL REMEDIES
By James L. Farina,
Alan J. Fisher and Steven P. Garmisa
When the law in a
state provides stronger protection for railroad employees, the railroad
will often argue that the state law is preempted by a Federal law
or regulation. That means the weaker Federal law displaces the stronger
state statute. This kind of displacement of state law is called
Federal preemption.
An important
question under Section 20109 of the Federal Rail Safety Act is whether
this revised federal law preempts state remedies for what is called
retaliatory-discharge.
Most states have
judicial decisions or statutes that protect non-railroad employees from
being fired in retaliation for filing claims under state workers’
compensation statutes. Under state workers’ compensation cases, an
employee who is injured on the job gets a pre-set but small amount of
benefits – even if the employer was not negligent. Workers
compensation laws also typically say it is illegal for an employer to
fire an employee in retaliation for filing a workers’ compensation case.
The reason is that if employers could get away with firing an employee
in retaliation for filing a workers’ compensation case, then employers
could prevent employees from exercising their statutory rights. Thus, a
non-railroad worker is protected by state law from
retaliatory-discharge.
Of course, injured
railroad employees do not get workers’ compensation benefits. Instead,
injured railroad employees are entitled to sue their employer in state
or federal court for negligence under the Federal Employers’ Liability
Act (“FELA”). And, lawyers representing railroad employees have argued
that state retaliatory-discharge laws should also apply to protect
railroad employees who are fired in retaliation for filing a complaint
under the FELA. The results have been mixed.
In 2005, for
example, the Kansas Supreme Court ruled that a railroad employee who was
fired for filing an FELA complaint is entitled to sue for retaliatory
discharge. Hysten v. Burlington Northern Santa Fe Ry. Co. [LINK]
However, railroad
employees who are injured in Illinois do not have the same protection as
Kansas railroaders. In Illinois, a non-railroad employee can sue
for retaliatory-discharge if he or she was fired for filing a workers’
compensation claim. And, significantly, Illinois judges have ruled that
a non-railroad employee can sue for retaliatory discharge even if he or
she is a union member who can attack the firing in grievance
proceedings.
It makes sense,
then, that Illinois judges should also permit a railroad employee to sue
for retaliatory discharge if he or she is fired for filing an FELA
claim. But last year, in a very disappointing decision, the Illinois
Appellate Court ruled that a railroad employee cannot sue for
retaliatory discharge if he or she was fired for filing an FELA
complaint. Izziarry v.
Illinois Central.
[LINK]
Vermont and
Louisiana, on the other hand, have wonderful statutes that protect
railroad employees if they are fired for filing a personal injury case
under the FELA. In Louisiana, a statute provides: “No person shall
discharge an employee from employment because of said employee having
asserted a claim for benefits under the provisions of [the Louisiana
workers’ compensation statute] or under the law of any state or of
the
United States.”
Louisiana
Revised Statutes, Title 23, Section 1362.
Similarly, a Vermont
law states: “No person shall discharge or
discriminate against an employee from employment because such employee
asserted a claim for benefits under [the
Vermont workers’ compensation statute] or under the law of any state
or under the
United
States.”
Vermont
Statutes, Title 21, Section 710.
This
means that in Kansas, Louisiana or Vermont, a railroad employee can sue
for retaliatory-discharge if he or she was fired for filing an FELA
complaint. But, as you can probably guess, this means that railroads
will want to claim Federal preemption. So, the key question is: Does
the new
version of Section 20109 of the Federal Rail Safety Act preempt
state laws that protect railroad employees who are fired for engaging in
protected activities? The answer is
simple. Section 20109(f) states: “Nothing
in this section preempts or diminishes any other safeguards against
discrimination, demotion, discharge, suspension, threats, harassment,
reprimand, retaliation, or any other manner of discrimination provided
by Federal or State law.”
This means that if you are a resident of Kansas, Vermont or Louisiana,
then you can still sue your employer for retaliatory discharge – under
State law – if you are fired for filing an FELA complaint. For railroad
employees who are residents in a state such as Illinois, where the
judges have – so far – refused to follow Hysten, the focus should
be on trying to get state legislators to enact the same kind of strong
statutory protection provided in Vermont and Louisiana.
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