What laws protect Railroad Whistleblowers?
In August 2007, President Bush signed The Implementing Recommendations of the 9/11 Commission Act of 2007 (“9/11 Act”). Section 1521 of the 9/11 Act amends The Federal Rail Safety Act (“FRSA”) by expanding the scope of protected activity and enhancing remedies for railroad employees that blow the whistle on railroad safety.
What activities are protected?
An employee engages in protected activity by:
- Reporting a hazardous safety or security condition;
- Refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties;
- Refusing to authorize the use of any safety or security related equipment, track or structures under certain hazardous conditions;
- Providing information or assisting in an investigation regarding conduct which the employee reasonably believes constitutes a violation of Federal law relating to railroad safety or security, fraud, waste or abuse of federal grants or other funds intended to be used for railroad safety or security;
- Being perceived by the employer to have engaged in the protected activity;
- Refusing to violate or assist in the violation of a federal law, rule or regulation relating to railroad safety or security;
- Filing an employee protection complaint under the FRSA;
- Notifying or attempting to notify the railroad carrier or the DOT of a work-related personal injury or work-related illness of an employee;
- Cooperating with safety or security investigation conducted by the DOT, DHS or NTSB; and
- Furnishing information to the DOT, DHS, NTSB or any federal, state, or local law enforcement agency regarding an accident resulting in death or injury to a person in connection with railroad transportation.
What adverse actions are prohibited?
The FRSA prohibits any action taken by an employer which has a negative effect on the employee’s terms, conditions, or privileges of employment. This includes intimidation, blacklisting, termination, suspension, demotion, reduction in salary, failure to hire, harassment, and any act that would dissuade a reasonable person from engaging in further protected activity.
What must a plaintiff prove to prevail?
To prevail in an FRSA case, an employee must establish that he engaged in a protected activity and that the protected activity was a contributing factor in the unfavorable personnel action.
What is the employer’s burden of proof?
If a plaintiff successfully establishes that his protected activity was a contributing factor to the adverse action, an employer may avoid liability by demonstrating by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity.
What can a prevailing plaintiff recover?
A prevailing plaintiff is entitled to reinstatement, back pay, and compensatory damages. In addition, a prevailing plaintiff can recover exemplary or punitive damages up to $250,000.
Edward S. Cook and Cook, Hall & Lampros, LLP are designated legal counsel for the United Transportation Union (UTU), Transportation Communication Union (TCU), The Brotherhood of Maintenance of Way Employees (BMWE)/Seaboard Federation-Brotherhood of Maintenance of Way Employees (Seaboard).
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