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.

REMARKS / OSHA issues new rule on Seaman’s Protection Act whistle-blower protections. Comment: This arm of the U.S. Department of Labor enforces the whistle-blower provisions in 22 statutes, including this one to protect from retaliation the seaman who “has engaged in protected activity pertaining to compliance with maritime safety laws and accompanying regulations”.

On February 5 OHSA issued its “Interim Final Rule; Request For Comments” on whistle-blower protections contained in the Seaman’s Protection Act (“SPA”). The complaints’ determinations by OSHA may be appealed to an administrative law judge within the U.S. Department of Labor for a de novo hearing, and if needed, to federal court (where the U.S. Department of Labor has failed to take specified steps within a specified time frame). 

The “interim final rule” is available here. 

The statute text from the SPA is available here. 

And the Washington DC Employment Law Update has a concise summary here.

Legal take-away: 

It’s important for the executive of a business operation covered by the Seaman’s Protection Act to be aware that its whistle-blower provisions and OSHA’s implementing rules as issued here are similar in terms and structure to the 22 other statutes relating to whistle-blower protections – some of which are specific  to transportation.

Here the SPA-implementing whistle-blower protection rule largely parallels the rules issued and now enforced by OSHA pursuant to the Surface Transportation Assistance Act, for instance. Copy of statute available here. Copy of rules OSHA issued last year available here.

Practical business take-away: 

As an employer, stay on top of such complaints and don’t let the calendar get away from you. As an employee bear in mind that the statutes of limitation are relatively short and you need to act quickly if you want relief under the SPA.

The legal framework governing protecting against whistle-blower retaliation in the various transport sectors (and others administered and enforced by OHSA) is largely a three-step process. So federal statute and regulation largely present whistle-blower rights as a management challenge to the employer – keep track of the timeline:

1. Aggrieved employee complains to OSHA and OSHA makes a determination.

2. Such employee can appeal determination to an administrative law judge.

3. If untimely response on part of employer such employee can go directly to federal court with his or her whistle-blower anti-retaliation complaint.

Respond timely to complaints to OSHA timely or else the aggrieved employee has the legal right to go into federal court.

In any event such employee will have the right to appeal OSHA’s determination to an administrative law judge.

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.

EMPLOYMENT (LABOR LAW) & RAILROAD / D.C. District Court upholds U.S. Department of Labor Administrative Review Board determination that whistle-blower anti-retaliation claims under federal statute (Federal Rail Safety Act as enacted 1970 and amended in 1980 and 2007 concerning whistle-blower anti-retaliation) may be pursued simultaneously with grievance process under Railway Labor Act § 3.

With this decision the development of whistle-blower and anti-retaliation statutory law takes another significant step. To the extent of this U.S. District Court’s ruling, 49 U.S.C. § 20109 is applied according to its literal terms – barring immediate appeal from an administrative review board decision on whistle-blower anti-retaliation claims to the federal court system. 

This has implications not only in rail, but in aviation, maritime and motor carrier – each of which is subject to whistle-blower anti-relation statutes. 

Norfolk Southern Railway Company v. Solis, 2013 WL 39226 (U.S. District Court for the District of Columbia, January 3, 2013). Free copy available here. Continue reading