A “whistle-blower” case against a railroad in federal court and a similar state court case against a motor carrier in state court provide an occasion for employers and employees among railroads and motor carriers to understand federal versus state law rules; and to identify what sort of claims have access to an administrative agency versus which provide access directly to a lawsuit in federal court for money damages in front of a jury.
Six basic points about federal “whistle-blower” or “anti-retaliation” statutes:
1. Employees of both railroads and motor carriers have access to well-defined “whistle-blower” or “anti-retaliation” remedies under federal law. (There are federal “whistle-blower” statutes in aviation too, but you can only cover so much in one blog post.)
2. Each of these provisions provides for money damages to be awarded to the complaining employee (plus provisions about conditional federal court jurisdiction for equitable remedies).
3. Each of these proceedings begins with the filing of a formal complaint with a federal agency (OSHA of U.S. Department of Labor in cooperation with the Federal Railroad Administration for railroads; OSHA in cooperation with the Federal Motor Carrier Safety Administration for motor carriers) – each with rights to appeal to a federal court of appeals if the complaining employee is dissatisfied with what the agency did with his or her claim.
4. BOTH RAIL AND MOTOR CARRIER “WHISTLE-BLOWER” STATUTES AFFORD CONDITIONAL ACCESS TO U.S. DISTRICT COURT THROUGH A LAWSUIT FOR MONEY DAMAGES OR IN EQUITY, TOGETHER WITH A RIGHT TO TRIAL BY JURY, BUT ONLY ON CONDITION THAT OSHA HAS FAILED TO ACT IN A TIMELY MANNER ON EMPLOYEE’S ADMINISTRATIVE COMPLAINT TO OSHA IN THE FIRST PLACE. 49 U.S.C. 20109 (d)(3) [Where the Secretary of Labor, "has not issued a final decision within 210 days after the filing of the complaint and if the delay is not due to the bad faith of the employee"]; 49 U.S.C. 31105 (c) [Where the Secretary of Labor, "has not issued a final decision within 210 days after the filing of the complaint and if the delay is not due to the bad faith of the employee"].
5. Judicial opinions arising under the laws of particular U.S. states (generally) offer relatively weak remedies through common law lawsuits to “whistle-blowers” or those employees who feel they have been the object of employer retaliation relating to safety. These lawsuits are often dismissed with a fact finding that the complaining employee did not prove that the dismissal or other employment setback was a direct result of some report or exercise of rights relating to safety.
6. Outside the specific agencies charged with enforcement and specialist practitioners in railroad or motor carrier employment law, even courts and intelligent private lawyers can get their laws and terms mixed up when it comes to “whistle-blower” or “anti-retaliation” protection for employee safety.
Who is affected? Railroad employers, motor carrier employers, railroad employees and commercial truck drivers.
Beck v. Central of Georgia Railway Co., 2012 WL 5866258 (M.D.Ga. November 19, 2012): Plaintiff employee pleaded that defendant railroad had unlawfully retaliated against him for report an on-the-job injury under so-called “whistle-blower” provision of the Federal Railroad Safety Act §§ 20109 et seq which provides that employer railroad, “may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due”, to reporting unsafe conditions or injury (decision concerned a motion to transfer to a different federal district court). Free copy available here.
McCormick v. AIM Leasing Co., Inc., 2012 WL 5874373 (N.D. Ohio, November 19, 2012): Lawsuit for allegedly wrongful discharge of commercial truck driver – one claim was that this was retaliation for plaintiff’s having reported safety violations in his trucking workplace relating to violation of federal hours of service limits; held: Although state common law cause of action for dismissal in violation of public policy had been recognized in Ohio since 1990, and although court recited 49 C.F.R. regulations for hours of service limits – plaintiff had not proven that such report of violation was the main or even a substantial reason for his dismissal. Free copy available here.