THE FRSA IN A NUTSHELL
What Is the FRSA?
The Federal Rail Safety Act, 49 U.S.C. Section 20109, is a powerful new law that protects railroad workers who engage in certain “protected activity.” FRSA prohibits railroads from firing, laying off, demoting, disciplining, reprimanding, intimidating, denying promotion or benefits, or in any other way retaliating or discriminating against any employee who engages in certain “protected activity.”
What Is Protected Activity Under the FRSA?
All railroad employees (and employees of railroad contractors or subcontractors) engage in “protected activity” when they:
– report a hazardous safety condition
– notify the railroad of their work-related injury or occupational illness
– notify the railroad of a co-worker’s work-related injury or occupational illness
– furnish information to the FRA, NTSB, or any regulatory or law enforcement agency relating to any railroad incident that results in injury, death, or property damage
– cooperate with a safety or security investigation by the FRA, NTSB, or Homeland Security
– provide information regarding any violation of any federal law, rule, or regulation relating to railroad safety or security
– provide information regarding any gross fraud, waste, or abuse of public funds intended to be used for transportation safety or security
– refuse to violate or assist in violating any federal law, rule, or regulation relating to railroad safety or security
– refuse to work under hazardous safety or security conditions
– refuse to authorize the use of unsafe railroad equipment, track, or structures
– accurately report their hours on duty pursuant to the Hours of Service Act
– follow the orders or treatment plan of their treating physician
– file a FRSA complaint with OSHA’s Whistleblower Office
– testify regarding a FRSA complaint
As far as reporting or furnishing information to their railroad employer is concerned, employees receive protection when they report or furnish that information to any railroad person who has supervisory authority over the employee or who has the authority to investigate, discover, or terminate the matter or conduct involved.
A railroad may not discipline or threaten to discipline an employee for following the orders or treatment plan of a treating physician. Also, a railroad may not deny, delay, or interfere with the initial medical treatment of a work related injury.
What Remedies Can Be Ordered Under the FRSA?
The FRSA is a “make whole” statute. When OSHA’s Whistleblower Office finds a railroad has violated the FRSA, it has the power to order any and all remedies necessary to make the employee whole, including:
– voiding and expunging discipline
– reinstatement with all seniority and benefits restored
– back pay with interest
– compensatory damages, including special damages for:
–mental distress or emotional suffering
–any economic losses stemming from the railroad’s actions
– punitive damages of up to $250,000, and
– attorney fees and costs (including expert costs)
How Does It Work?
A railroad employee must file a FRSA complaint with the appropriate United States Department of Labor’s Regional OSHA Whistleblower Office within 180 days of when the employee knew or should have known of the adverse action taken by a railroad. There may be more than one adverse action involved. For example, OSHA considers the first notice of a disciplinary charge to be an adverse action that starts its own 180 window. The subsequent holding of a disciplinary trial and the imposition of formal discipline will start their own 180 day windows.
After the Complaint is filed, OSHA’s Whistleblower Office assigns an Investigator to the file, who conducts an investigation by: obtaining a written response from the railroad; interviewing the complainant, co-workers, managers, and any other relevant witnesses; and collecting all relevant documentation. OSHA then issues a written decision finding a violation or not. If there is a violation, OSHA orders all remedies necessary to make the employee whole.
After OSHA issues its Merit Finding, a railroad has 30 days to either comply with the Order or to file an objection to the Order, in which case it proceeds to a de novo evidentiary hearing before a federal administrative law judge (ALJ). Any appeal from a decision of an ALJ goes to the federal Administrative Review Board (ARB) in Washington, D.C. However, if OSHA has not issued a final decision within 210 days (and a decision is not final if it is still pending before OSHA, an ALJ, or the ARB), the FRSA allows the complainant the option of filing his or her FRSA complaint in federal district court for a jury trial on all the issues, including punitive damages. Any appeal from a district court jury verdict or ARB decision is to a United States Circuit Court of Appeals, and then to the United States Supreme Court if certiorari is granted.
What Is the FRSA Standard of Proof?
FRSA Four Elements of Proof
(1) the complainant employee engaged in activity protected by the FRSA (e.g., reported an injury or a hazardous safety condition);
(2) the railroad knew or suspected the employee engaged in the activity;
(3) the railroad subjected the employee to some form of adverse action (e.g., discipline or discriminatory treatment); and
(4) the employee’s protected activity was a contributing factor to the adverse action.
Meaning of Contributing Factor
A “contributing factor” is a factor which, alone or in connection with other factors, affected in any way the railroad’s adverse action. A protected activity was a contributing factor if the railroad’s adverse action was based “in whole or in part” on the protected activity–that is, if the protected activity affected the railroad’s action to any extent.
No Proof Of Retaliatory Motive Is Necessary
A railroad employee does not have to prove the existence of a retaliatory motive on the part of the manager or supervisor who took the adverse action. Regardless of a manager’s motives, adverse actions simply cannot be based in whole or in part on the protected activity of an employee.
FRSA Can Override Valid Reasons For Discipline
A railroad can have a valid reason for firing an employee and still violate the FRSA if the discipline also is based in part on the employee’s protected activity of raising a safety concern, reporting an injury, or following a treating doctor’s orders. In the words of OSHA:
In proving that protected activity [such as reporting an injury, raising a safety concern, or following a treating doctor’s orders] was a contributing factor in the adverse action, an employee need not necessarily prove that the railroad’s articulated reason was a pretext in order to prevail, because an employee alternatively can prevail by showing that the railroad’s reason, while true, is only one of the reasons for its conduct, and that another reason was the employee’s protected activity.
OSHA’s Interim Final Rule regarding 29 CFR 1982.104, published at 75 Federal Register 53521-53533 (8/31/10). Thus, a railroad manager can have a valid reason for taking disciplinary action against an employee and still be in violation of the FRSA as long as the employee shows that another reason was his or her protected activity of reporting an injury, raising a safety concern, or following a treating doctor’s orders.
Once an employee established that his or her protected activity was a contributing factor in the adverse action, the only way a railroad can escape liability under the FRSA is to prove by “clear and convincing evidence” (which is a higher standard of proof than a preponderance of the evidence) that it would have taken the same action in the absence of the protected activity.
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
Safety Advisory 2011–01
AGENCY: Federal Railroad
Administration (FRA), Department of
ACTION: Notice of Safety Advisory; equipment fouling adjacent tracks.
SUMMARY: FRA is issuing Safety Advisory 2011–01 to remind each
railroad and railroad employees of the importance of compliance with Federal regulations and railroad operating rules regarding rolling equipment being left in a location that is clear of any adjacent
tracks. This safety advisory containsvarious recommendations to railroads to ensure that this issue is addressed by appropriate policies and procedures, and receives employee compliance.
FOR FURTHER INFORMATION CONTACT: Ron Hynes, Director, Office of Safety Assurance and Compliance, Office of Railroad Safety, FRA, 1200 New Jersey Avenue, SE., Washington, DC 20590, telephone (202) 493–6404; or Joseph St.
Peter, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Washington, DC 20590, telephone (202) 493–6047.
The overall safety of railroad operations in the area of equipment securement and protection has improved in recent years.
However, two recent fatal incidents highlight the need to review and adhere to existing Federal regulations and railroad operating rules pertaining to rolling equipment being left in a location that is clear of any adjacent tracks. On May 18, 2005, the Railroad Safety Advisory Committee (RSAC) authorized the RSAC Operating Rules Working Group to address eight human factors (HF) train accident report cause codes that were attributed to nearly half (47 percent) of all HF-caused train accidents nationwide. On February 13, 2008, FRA published a final rule addressing those HF causes, which was codified at Title 49 Code of Federal Regulations (CFR) Part 218, Subpart F (Subpart F). Two of
those eight HF cause codes, H301 and H302, were designated for rolling equipment left out to foul. From 2005 to 2010, HF-caused train accidents, attributed to these two cause codes, were reduced by 66 percent.
Unfortunately, despite that overall improvement, the rail industry
experienced two recent railroad employee fatalities that appear to have been related to equipment being left in a location where it fouled an adjacent track.
The following is a discussion of the circumstances surrounding two recentfatal incidents, and is based only on FRA’s preliminary investigations. The incidents are still under investigation by
FRA. The causes and contributing factors, if any, have not yet been
established. Therefore, nothing in this safety advisory is intended to attribute a cause to the incidents or place VerDate Mar<15>2010 19:53 Apr 06, 2011 Jkt 223001 PO 00000 Frm 00212 Fmt 4703 Sfmt 4703 E:\FR\FM\07APN1.SGM 07APN1 mstockstill on DSKH9S0YB1PROD with NOTICES
Federal Register / Vol. 76, No. 67 / Thursday, April 7, 2011 / Notices 19519 responsibility for the incidents on the acts or omissions of any person or entity. Two railroad employees, while each riding the side of rolling equipment to protect a shoving movement, were fatally injured (in separate incidents) when the equipment they were riding struck other equipment that was left out to foul. A common factor in both accidents was that the equipment was left in a location where it fouled an adjacent track by the very employees who were involved in the incidents. The first incident occurred on September 2, 2010, in Bridgeport, New Jersey, when a conventional two-person switching crew was shoving rolling equipment into an industrial facility. The locomotive engineer was in the locomotive control compartment and
the conductor was positioned on the leading end of a tank car directing the shoving move. The conductor had one foot on the end platform and the other on the side ladder tread as he began to pass a tank car that he had spotted at that location the previous day. Unfortunately, the car had been left in the foul of the adjacent track and the cars struck each other; the conductor sustained fatal injuries.
The second incident occurred on February 8, 2011, in Kankakee, Illinois. A conventional switching crew that consisted of a conductor, engineer, and a conductor-in-training was switching cars on a switching lead track and using various other yard tracks. The crew had left a car on one of the yard tracks in a location where it was in the foul of an adjacent track. Shortly thereafter, the conductor and conductor-in-training boarded opposite sides of the leading end of a gondola car and began a shoving movement. Subsequently, the side of the gondola on which the conductor was riding struck the car that was previously left in the foul of the adjacent track. The conductor was crushed between the two cars and sustained fatal injuries.
Although the preponderance of incidents involving equipment that is left in the foul of an adjacent track fortunately only result in railroad property damage, the potential for injury or death in such instances is
always present. By issuing this safety advisory, FRA is reminding all
stakeholders of the importance of situational awareness and compliance with all applicable operating and safety rules, particularly those related to leaving rolling equipment in a location that is clear of adjacent tracks. FRA Action: Despite the significant reduction in train accidents caused by equipment being left in the foul of an adjacent track, a review of FRA’s inspection data relative to 49 CFR 218.101 indicates a disturbing trend. From calendar year (CY) 2009 to CY2010, violations of 49 CFR 218.101 recommended for prosecution by FRA
inspectors increased 124 percent. Based on the results of inspection data for the first 2 months of 2011, if trends continue, violations recommended for prosecution in 2011 versus 2010 would increase by an additional 81 percent. Whether the increase in violations is due to greater vigilance by FRA or is due to an actual increase in the number
of instances where equipment is being left in such locations, FRA intends to ensure that railroads take necessary steps to prevent and reduce the potential trend indicated by the statistics noted above.
Over the next several months, FRA intends to increase its inspection
activity to focus on compliance with railroad operating rules that address all of the requirements contained in Subpart F. Particular emphasis will be placed on the requirements contained in 49 CFR 218.101. FRA will also focus its inspection efforts on railroad
operational testing activity, particularly as it relates to Subpart F. FRA strongly encourages railroad industry members to reemphasize the importance of leaving equipment in the clear as frequently as possible, and to take such other actions as may help ensure safety on the Nation’s railroads. Recommended Railroad Action: In light of the recent accidents discussed above, and in an effort to maintain the safety of railroad employees on the Nation’s rail system, FRA recommends
(1) Review with employees the circumstances of the two most recent
(2) Reinstruct supervisors and employees on the operating and safety
rules applicable to leaving rolling equipment in a location that is clear of
adjacent tracks. Particular emphasis should be placed on the procedures that enable employees to identify clearance points and the means to identify locations where clearance points will not permit a person to safely ride on the side of a car;
(3) Increase operational testing on those operating and safety rules that pertain to leaving rolling equipment in a location that is clear of adjacent tracks; and
(4) Review current job briefing procedures among coworkers and
determine if the procedures are sufficient to encourage more effective
communication regarding switching activities, specifically as the procedures
Always Talk to a Lawyer
If you’re injured while working on the railroad you should always talk to a lawyer. Not just any lawyer, but a union designated lawyer who has been evaluated and selected by your union. The Federal Employers Liability Act (FELA) requires that you know certain things and that you act on them with great precaution. Before we go any further, everyone should pick a designated lawyer with whom they feel comfortable and you should have that information available at all times. You should also have a clear understanding between you and your significant other so they also know who to call if for some reason you can’t.
If you’re injured on the job call your local chairperson and get them up to speed on exactly what’s going on. Next, call the designated legal counsel of your choice and get their immediate advice. Don’t wait until after you have filled out the accident report or given a statement, get on your cell phone and call immediately. We are here and available twenty-four hours a day every day of the week. It cost you nothing for advice and you are not obligated in any way.
There is a mindset out in the trenches that one should wait and give the claim agent a chance before talking to a lawyer. Have you heard it said that if you can get three times your lost wages you should take it? That is sometimes true, but not always. If your lawyer is worth their weight in lead, they would never pursue you as a client if they felt you could do just as well on your own. The reason you call a lawyer is to make sure your saying the right things, doing the right things, and ultimately protecting your future claim regardless of how big or small it may be.
Are Your Benefits Enough to get you by if You’re off Work?
If you’re injured or sick, and if you have earned enough in the previous fiscal year the Railroad Retirement Board pays sick benefits, in the amount of $1,182.00 per month for 26 weeks. Everyone should figure out what their monthly obligations are and if $1,182.00 per month is not enough to cover them, then you should consider getting a disability policy from the UTUIA. It will be the best investment you ever made if you get sick or injured and are unable to work. For more information on the UTUIA, please visit their website.