Michigan Court Upholds Right to Pursue FRSA Cases in Federal Court

July 06, 2016

In a recent case in the U.S. District Court for the Eastern District of Michigan, the court denied Grand Trunk Railroad’s Motion to Dismiss, holding that a plaintiff may pursue a Federal Railroad Safety Act (FRSA) whistleblower retaliation claim in federal court, even after he has pursued the same claim administratively with the Department of Labor. The court held that pursuing remedies in both venues did not constitute bad faith on the part of the complainant, did not present a res judicata (claim preclusion) issue, and did not violate the due process rights of the defendant railroad. This case is important because it affirms the options available to a whistleblower to fully adjudicate claims of unlawful retaliation.

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Federal Judge in Tennessee Reiterates “Permissive Threshold” of Contributing Factor Standard in Whistleblower Retaliation Cases

April 15, 2016

In a recent Federal Railroad Safety Act (FRSA) whistleblower retaliation claim, the United States District Court for the Eastern District of Tennessee reiterated the “permissive threshold” standard of the “contributing factor” test under the FRSA. This case demonstrates the importance of this standard in allowing whistleblowers to pursue retaliation claims, and ultimately to protect public safety.

Under the FRSA, an employee claiming that his employer has subjected him to unlawful retaliation for whistleblowing must show that: 1) he engaged in protected activity; 2) his employer had knowledge of his protected activity; 3) that he suffered an unfavorable personnel action; and 4) that his protected activity was a contributing factor in the unfavorable personnel action. After the employee makes out a prima facie case that his protected activity was a contributing factor, the employer must show that it would have taken the same adverse personnel action absent the employee’s protected activity.» Read more

Recent Actions Highlight OSHA’s Role in Enforcing Whistleblower Anti-Retaliation Laws

September 21, 2015

The Department of Labor’s Occupational Safety and Health Administration is known for its role in implementing and enforcing safety standards in workplaces across the United States. But another main role played by OSHA is its enforcement of the whistleblower anti-retaliation provisions of a number of statutes, including but not limited to: The Occupational Safety and Health Act, the Sarbanes-Oxley Act, the Clean Air Act, the Surface Transportation Safety Act, and the Federal Railroad Safety Act. Several recent actions by OSHA demonstrate the seriousness with which OSHA enforces these statutes.

On August 4, 2015, OSHA announced that it filed suit against Continental Alloys and Services, Inc., a Houston-based company which provides steel for oil and gas companies, for violations of the Occupational Safety and Health Act’s whistleblower provision. In this case, a former employee filed a complaint for wrongful termination after Continental fired her, allegedly because she complained that the company failed to log workplace injuries in violation of OSHA regulations.  The whistleblower reported several instances when the company failed to log injuries, and even recorded a meeting with the company official who failed to record the injuries in order to gather evidence for an internal investigation. Continental fired her as a result of her actions. In its suit, OSHA seeks an injunction barring further retaliation, and reinstatement, back pay, and any other damages suffered by the whistleblower.
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Third Circuit District Courts Split on Kick-Out Actions Brought After Final Agency Decisions

August 14, 2015

The U.S. District Court for the Western District of Pennsylvania ruled that plaintiffs claiming retaliation under Federal Railroad Safety Act (FRSA) lose their right to sue in federal court when the Department of Labor (DOL) reaches a final decision in their action, even if that decision is reached more than 210 days after the DOL administrative complaint was filed.

This ruling creates a split among the Third Circuit’s district courts. Just last year, the U.S. District Court for the Eastern District of Pennsylvania found that the right to file a so-called “kick-out” action in federal court is triggered when a final administrative decision isn’t reached within 210 days, and that FRSA contains nothing that extinguishes that right if the DOL subsequently issues a final decision.

In Mullen v. Norfolk Southern, Harry Mullen alleged that the railroad wrongfully terminated his employment because he protested to his supervisors about violations of safety regulations. Mullen’s termination occurred on February 14, 2011. Mullen filed a whistleblower claim with the DOL’s Occupational Safety and Health Administration (OSHA) on April 28, 2011 under the FRSA, 49 U.S.C. § 20109.
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Whistleblower Not Obligated to Produce Evidence of Retaliatory Termination

June 03, 2015

On March 20, 2015, the Department of Labor Administrative Review Board (ARB) reversed and remanded a decision by the DOL’s Office of Administrative Law Judges (OALJ) that held a railroad employee had not proved that his report of a workplace injury was a contributing factor to management’s decision to terminate his employment.

Robert Powers reported to his employer, Union Pacific Railroad Company, that he injured his hand while operating a rail saw at work in May 2007. Over slightly more than a year, Powers saw several doctors who prescribed various treatments. His doctors also imposed a series of work restrictions, including limits on lifting and repetitive motions.

Union Pacific became suspicious about Powers’ reported injuries and resultant work restrictions. The company hired a private investigator who filmed Powers performing tasks around his property, including using a sledgehammer and carrying boxes of ammunition. After an internal administrative procedure that determined that Powers had violated the company’s dishonesty policy and had failed to stay within his medical restrictions, the company terminated Powers’ employment.
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Adverse Action Extends to Employee Sent Home to Obtain Medical Release

May 03, 2015

On March 20, 2015, the U.S. Department of Labor’s Administrative Review Board affirmed an Administrative Law Judge’s holding in Jackson v. Union Pacific Railroad Co., finding that an adverse action extends to an employee sent home to obtain a medical release.

On August 29, 2011, Union Pacific Railroad switchman/brakeman Michael A. Jackson reported to his manager a foul smoky odor in Union’s freight yard outside Avondale, Louisiana. When Jackson, because of health and safety concerns, requested assignment to an area free from smoke, his supervisor told Jackson to go home and return to work only after obtaining a medical release.

On December 1, 2011, Jackson filed a complaint with the DOL’s Occupational Safety and Health Administration, seeking damages because he had been temporarily suspended from work after raising health and safety concerns.

Concluding that Union violated the Federal Railroad Safety Act’s whistleblower protection provision, an ALJ awarded Jackson compensatory damages. The ARB, affirming OSHA’s decision, determined that Jackson engaged in protected activity when he reported safety concerns concerning foul smoky air to his manager.

The ARB’s finding—that Jackson was constructively discharged because he did not ask to go home—likely has broad implications for employees who face adverse actions for reporting health and safety concerns. The ARB’s decision affirms that the health and safety of our nation’s workforce is a top priority.

Adverse Action Extends to Employee Sent Home to Obtain Medical Release

May 03, 2015

On March 20, 2015, the U.S. Department of Labor’s Administrative Review Board affirmed an Administrative Law Judge’s holding in Jackson v. Union Pacific Railroad Co., finding that sending an employee home to obtain a medical release can constitute an actionable adverse employment action.

On August 29, 2011, Union Pacific Railroad switchman/brakeman Michael A. Jackson reported to his manager a foul smoky odor in Union’s freight yard outside Avondale, Louisiana. When Jackson, because of health and safety concerns, requested assignment to an area free from smoke, his supervisor told Jackson to go home and return to work only after obtaining a medical release.

On December 1, 2011, Jackson filed a complaint with the DOL’s Occupational Safety and Health Administration, seeking damages because he had been temporarily suspended from work after raising health and safety concerns.

Concluding that Union violated the Federal Railroad Safety Act’s whistleblower protection provision, an ALJ awarded Jackson compensatory damages. The ARB, affirming OSHA’s decision, determined that Jackson engaged in protected activity when he reported safety concerns concerning foul smoky air to his manager.

The ARB’s finding—that Jackson was constructively discharged because he did not ask to go home—likely has broad implications for employees who face adverse actions for reporting health and safety concerns. The ARB’s decision affirms that the health and safety of our nation’s workforce is a top priority.

Federal District Court in New York Holds that Retaliation under FRSA is Governed by AIR 21’s Burden-shifting Framework

January 13, 2015

The U.S. District Court for the Northern District of New York recently denied summary judgment in a suit filed by Robin Young against his former employer, CSX Transportation. Young alleged that CSX violated the Federal Rail Safety Act’s anti-retaliation provisions when it fired him after it was informed that he had filed a complaint with the Occupational Safety and Health Administration (OSHA). Young’s complaint to OSHA alleged that CSX told him to “refrain from providing extensive testimony about related safety issues” during a formal hearing with the Federal Railroad Administration; and then fired him because he refused to comply with this order.

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OSHA Finds BNSF, Rail Company Owned by Berkshire Hathaway, Liable in Three Retaliation Cases and Awards Damages to Employees

January 13, 2015

The Department of Labor’s Occupational Safety and Health Administration found a railway company owned by Warren Buffett’s Berkshire Hathaway liable in three retaliation complaints brought by employees. OSHA ordered Berkshire Hathaway’s Burlington Northern Santa Fe Railway Co. (BNSF) to pay more than $272,000 to these employees, plus various non-monetary relief.

OSHA found that BNSF violated the Federal Railroad Safety Act (FRSA) when it reprimanded a conductor who missed work in accordance with a physician’s treatment plan. In addition to ordering BNSF to pay $12,000 in monetary damages ($2,000 in compensatory damages and $10,000 in punitive damages, plus attorneys’ fees), OSHA ordered BNSF to purge the employee’s personnel record of all disciplinary information, and to distribute whistleblower rights information to all employees.

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ARB Affirms Punitive Damages for Two Whistleblowers

April 03, 2014

The U.S. Department of Labor’s Administrative Review Board (ARB) affirmed judgments against two transportation companies that fired employees who had reported health and safety issues — confirming in each case that the violation was grievous enough to trigger punitive damages.

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