AVIATION (OSHA) / Recent legislation (FAA Modernization and Reform Act of 2012) requires the Federal Aviation Administration to develop a statement of policy about “the circumstances in which the requirements of the [U.S. Department of Labor Occupational Safety and Health Administration] OSHA may be applied to crewmembers while working in an aircraft”. This FAA “Policy Statement” does not state policy as much as it invites comment.

“Occupational Safety and Health Standards for Aircraft Cabin Crewmembers”

August 27, 2013. Notice Of Availability; Final Policy And Disposition Of Comments.

This announcement details various comments received from industry stakeholders, together with FAA and OSHA replies.

Text of “Policy Statement on Occupational Safety and Health Standards for Aircraft Cabin Crewmembers” available here.

MARITIME (OSHA) / U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) formally announces in Federal Register the reestablishment of the Maritime Advisory Committee for Occupational Safety and Health, to advise OSHA – note earlier informal press announcement that OSHA has targeted maritime industry “for special attention because of its high injury and illness rates and the specialized character of maritime work”.

“In accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C., App. 2), and after consultation with the General Services Administration, the Secretary of Labor is reestablishing the charter for the Maritime Advisory Committee for Occupational Safety and Health. The Committee will better enable OSHA to perform its duties under the Occupational Safety and Health Act (the OSH Act) of 1970 (29 U.S.C. 655, 656). Authority to establish this Committee is at Sections 6(b)(1) and 7(b) of the OSH Act, Section 41 of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 941), Secretary of Labor’s Order 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR Part 1912. The Committee is diverse and balanced, both in terms of segments of the maritime industry represented (e.g., shipyard employment, longshoring, and marine terminal industries), and in the views and interests represented by the members.”

“The Committee will advise OSHA on matters relevant to the safety and health of employees in the maritime industry. This includes advice on maritime issues that will result in more effective enforcement, training, and outreach programs, and streamlined regulatory efforts. The maritime industry includes shipyard employment, longshoring, marine terminal and other related industries, e.g., commercial fishing and shipbreaking. The Committee will function solely as an advisory body in compliance with the provisions of FACA and OSHA’s regulations covering advisory committees (29 CFR Part 1912).”

“Maritime Advisory Committee for Occupational Safety and Health (MACOSH)”

April 12, 2013. Final Rule. Notice Of Reestablishment Of The Macosh Charter.

See last week’s post on this blog available here.

ANNOUCEMENT / U.S. Department of Labor Occupational Safety and Health Administration (OSHA) to re-establish Maritime Committee for Occupational Safety and Health. COMMENT: Chief federal unit relating to worker safety is taking a new look at the maritime industry, with likely implications for more active enforcement.

Announcement available here.   

“The Department [of Labor via OSHA] selected the maritime industry for special attention because of its high injury and illness rates and the specialized character of maritime work.”

REMARKS / Judge applying Federal Railroad Safety Act in case relating to railroad’s retaliation against employee for claiming a safety violation on the railroad’s part recognizes a major turning point in the development of such cases. COMMENT: In evaluating attorney fee award to plaintiff’s counsel the court underscores what observers had concluded: That counsel, Charlie Goetsche, Esq., has taken this statute from its earlier status as a potential means to uphold railroad employees’ rights against retaliation for safety claims and warnings – to make the Federal Railroad Safety Act a legal tool to be reckoned with in actual practice.

Barati v. Metro North Railroad, 2013 WL 1296484, (U.S. District Court for the District of Connecticut, March 27, 2013). Free copy available here.

See summary by plaintiff’s attorney relating to this fee award here

See earlier write-up by plaintiff’s attorney on this landmark case here (Under Comments, Recommended Reading, at “Railroad (Federal Rail Safety Act)”.

U.S. Department of Labor OSHA orders Union Pacific Railroad Co. to reinstate employee for reporting a work-related injury – more than $350,000 in damages.

Finding violation of the Federal Railroad Safety Act for reporting a work-related injury. in back wages, compensatory damages and punitive damages plus interest. 

Copy of news release available here.

Case Study: On Tuesday February 19, 2013 a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit materially strengthened the whistle-blower protections of railroad employees contained in the Federal Rail Safety Act by the construction it placed on some of its key provisions to protect against retaliation for reporting injuries. .

Free copy of opinion available here.

This is significant not only for railroad employees who believe they face retaliation for having reported a safety problem, but for employees in other sectors like maritime, aviation and motor carrier who are protected by federal statutory counterparts to the Federal Rail Safety Act. 

The arrangement of my excerpts below from the court’s opinion cribs liberally from the structure of Charles Goetsch, Esq.’s summary – the lawyer who argued before the 3rd Circuit on behalf of employee-complainant here whose summary is included at “Recommended Reading” below: 

1. The 3rd Circuit took an expansive view of the safety purpose of the Federal Rail Safety Act – particularly as amended in 2007 to include anti-retaliation measures: 

“The purpose of the Federal Rail Safety Act (“FRSA”) is “to promote safety in every area of railroad operations.” 49 U.S.C. § 20101. The FRSA was substantially amended in 2007 to include anti-retaliation measures. Prior to the passage of the FRSA, whistleblower retaliation complaints by railroad carrier employees were subject to mandatory dispute resolution pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq. See generally 75 Fed. Reg. 53,523 (Aug. 31, 2010). Congress passed the FRSA amendment in 2007, expanding the scope of the anti-retaliation protections and providing enforcement authority with the Department of Labor. Under the newly amended FRSA, a railroad carrier “may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part” to the employee’s engagement in one of numerous protected activities. 49 U.S.C. § 20109(a). The protected activities are enumerated in the statute, and include notifying the railroad carrier of a work-related personal injury or a work-related illness. Id. § 20109(a)(4).”

2. The 3rd Circuit adopted a burden of proof statement and burden-shifting rule that practicing legal counsel will view as advantaging the employee-complainant; the same can be said of the 3rd Circuit’s statutory construction of the term “contributing factor”: 

“It is necessary for us to interpret the FRSA burden- shifting scheme. Statutory analysis begins with the plain language of the statute, “the language employed by Congress.” Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979)) (internal quotations omitted). This Court must give effect to the intent of Congress by giving these words their “ordinary meaning.” Id. (internal quotation omitted). Considering the plain meaning of the statute, FRSA burden- shifting is much more protective of plaintiff-employees than the McDonnell Douglas framework. The plaintiff-employee need only show that his protected activity was a “contributing factor” in the retaliatory discharge or discrimination, not the sole or even predominant cause. See 49 U.S.C. § 42121(b)(2)(B)(ii). In other words, “a contributing factor is any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” Ameristar Airways, Inc. v. Admin. Rev. Bd., 650 F.3d 563, 567 (5th Cir. 2011) (quoting Allen, 514 F.3d at 476 n.3 (internal quotation omitted).

“The term “contributing factor” is a term of art that has been elaborated upon in the context of other whistleblower statutes. The Federal Circuit noted the following in a Whistleblower Protection Act case:

“The words “a contributing factor” . . . mean any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision. This test is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a “significant”, “motivating”, “substantial”, or “predominant” factor in a personnel action in order to overturn that action.

Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (quoting 135 Cong. Rec. 5033 (1989) (Explanatory Statement on S. 20)) (emphasis added by Federal Circuit). Furthermore, an employee “need not demonstrate the existence of a retaliatory motive on the part of the employee taking the alleged prohibited personnel action in order to establish that his disclosure was a contributing factor to the personnel action.” Marano, 2 F.3d at 1141 (emphasis in original); see also Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir. 2010) (“A prima facie case does not require that the employee conclusively demonstrate the employer’s retaliatory motive.”).

“Once the employee asserts a prima facie case, the burden shifts to the employer to demonstrate, “by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.” 49 U.S.C. § 42121(b)(2)(B)(ii). The “clear and convincing evidence” standard is the intermediate burden of proof, in between “a preponderance of the evidence” and “proof beyond a reasonable doubt.” See Addington v. Texas, 441 U.S. 418, 425 (1979). To meet the burden, the employer must show that “the truth of its factual contentions are highly probable.” Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (internal quotation omitted).”

3. As Charles Cahill puts it in his blog piece: “Even if an injured employee violates a Rule by following a common practice, the railroad nevertheless violates the FRSA if it disciplines that injured employee after ignoring other employees who followed the same practice.” 

Legal take-away:

This case significantly clarifies the Federal Rail Safety Act as amended in 2007 with protections for whistle-blowers.

As I noted in a post a few weeks ago (here), the law displays considerable ambivalence about whistle-blower / anti-retaliation protections. [plug] Such protection as is offered by statute in the various transport modes and also outside the transport sector is often hedged in with short statute of limitations filing time limits, limited and conditional access to federal court, and considerable legal credence given to employer explanations of what they call as “disciplinary” action for claimed complainant rule violations.

From the standpoint of legal doctrine this case moves the needle toward complainant’s rights and requires more of the employer who would wish to strike down the complainant’s claim.

Practical business take-away: 

Whatever one thinks is the proper policy toward whistle-blowers – in transport or elsewhere – this case makes matters considerably easier for the employee-complainant and harder for the employer who seeks to explain why it took action against the employee in question.

This holding and related opinion amount to a strong move in the employee-complainant’s direction. Railroad employees and railroad management should each take note, as Charles Cahill has underscored in his summary. A summary of a case that he argued himself to the 3rd Circuit.

RAILROAD (FEDERAL RAIL SAFETY ACT) / Plaintiff railroad employee sues under Federal Rail Safety Act alleging employer retaliation for his reporting an injury, and defendants contend plaintiff had not exhausted administrative remedies as FRSA requires prior to bringing action in federal district court – held: Plaintiff’s complaint to U.S. Department of Labor OSHA sufficed to exhaust administrative remedies.

To argument that plaintiff did not submit appropriate “whistle-blower” complaint to OSHA court rule that neither the statute nor regulations prescribes a form for such a complaint and requires that it be used strictly in conformity to it. 

Windom v. Norfolk Southern Railway. Co., 2013 WL 432573 (U.S. District Court for the Middle District of Georgia, February 1, 2013). Free copy available here.

AVIATION / OSHA to regulate airline passenger cabin crews: FAA proposes policy statement on OSHA regulation of some occupational safety and health conditions affecting cabin crewmembers on aircraft – Implementing FAA and OSHA “partnership … conceived through the FAA Modernization and Reform Act of 2012”.

Who is affected? Flight attendants on Part 121 certificate holders and other passenger airlines – and their unions and managements.

(December 7, 2012, Notice of availability; Request for Comments ):

This Seyfarth Shaw write-up concisely summarizes this and its impact: “It is not clear exactly when this new policy will become effective, but it is another example of OSHA’s ever expanding reach.”

The Seyfarth Shaw piece is well worth reading on this point. This is a major development (good or ill).

EMPLOYMENT, MOTOR CARRIER & RAILROAD / Two cases on railroad and motor carrier employees as whistle-blowers: Rights under federal vs. state law; administrative agency access vs. lawsuit in court.

Business Take-Away:

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.)

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