Perspective: Short Line & Regional TRACey HOlMeS DONeSKy
OSHA whistleblower claims: No signs of slowing
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ction 20109 of the Federal Rail Safety Act (“FRSA”) prevents covered rail carriers and other covered entities (such as contractors and subcontractors) from taking disciplinary or other adverse action against employees for engaging in protected activity. When Congress amended the FRSA in 2007 and in 2008, it not only transferred jurisdiction over 20109 claims from the National Railroad Adjustment Board to the Department of Labor (DOL) and its Occupational Safety & Health Administration (OSHA) division, but it also expanded the types of employee activity protected under the law. Along with bringing complaints regarding railroad safety and security laws, testifying at railroad safety proceedings, or refusing to work in hazardous conditions, the FRSA now prohibits a railroad from discriminating against an employee who reports a work-related personal injury or illness; from denying, delaying, or interfering with the medical or first aid treatment of an employee injured during the course of employment; from disciplining or threatening to discipline an employee for requesting medical or first aid treatment; or for following orders or a treatment plan of a treating physician. Employees often have recourse and remedies under collective bargaining agreements (CBAs) which govern the terms and conditions of their employment. But the DOL and at least one federal district court have held that, pursuing remedies under a CBA does not preclude FRSA claims. It is therefore not uncommon for rail carriers to find themselves defending claims for similar alleged actions in multiple forums, including defense of related alleged work injury claims under the Federal Employers Liability Act (FELA). The FRSA
amendments also increased a carrier’s potential liability. An employer’s liability for violations not involving discharge, suspension, or other action affecting pay were capped at $20,000. Today, $250,000 in punitive damages alone may be ordered, not to mention potential recovery of backpay, compensatory damages, and/or attorneys’ fees.
The filing of OSHA whistleblower claims is unlikely to subside any time soon. Since the amendments, claims of FRSA violations have risen. DOL says OSHA received more than 900 complaints of FRSA violations between 2007 and 2012. A majority of claims allege that an employee engaged in one of the newly recognized types of protected activity. DOL reports that 63% of the matters allege that an employee was retaliated against for reporting an alleged workrelated injury. Several factors may account for this number, including an active FELA plaintiffs’ bar which often assert 20109 and FELA claims. Many of these “work-related injury report” cases have resulted in adverse decisions and sizable damage awards against railroads, including some measure of punitive damages. Recent legal interpretations of the scope and breadth of 20109 claims have not made defense of such claims any easier. In addition to the election of remedies decisions noted above, the Administrative Review Board held in July 2012 that
medical treatment applies for the full period of an employee’s treatment and recovery, not just the time temporal to the injury as a lower level decision had held. In February 2012, an Administrative Law Judge held that the prohibition against disciplining an employee for following the orders or treatment of a treating physician applies equally to on-duty as well as offduty injuries. Last February, the first appellate court to review a post-amendment FRSA case applied what the court called an employee-friendly burden-shifting standard in reversing the district court’s grant of summary judgment for the employer. OSHA has also been active in its oversight of 20109 claims. In March 2012, it published a guidance memorandum to field officers and other staff on several employer practices that, in DOL’s view, can discourage employee reports of injuries. It calls particular attention to the FRSA’s anti-retaliation provision for reporting alleged work-related injuries. The memorandum identifies four types of workplace practices that in DOL’s view could discourage reporting and could constitute unlawful discrimination. OSHA acknowledged that these rules serve valid and legitimate employer purposes. However, the memo notes that review of such cases require careful scrutiny and identified several factors field personnel should consider when investigating such claims. In light of this, it is unlikely that the filing of OSHA whistleblower claims will subside any time soon. Carriers should be well aware of the provisions under 20109 and should consider implementing pro-active and preventative measures to minimize potential claims. Tracey Holmes Donesky, of Leonard, Street and Deinard, counsels and represents clients on OSHA whistleblower 20109 claims. April 2013 RAilwAy Age 17