Personal Injury (and Employment): Railroader Retaliation & Discrimination (FRSA)

Similar to how on-the-job railroader injuries fall under the exclusive jurisdiction of the Federal Employers Liability Act, discrimination and retaliation against railroader whistleblowers are prohibited by a special federal law known as the Federal Railroad Safety Act (FRSA).

Whistleblower Protection for Railroad Workers

In 2007, the U.S. Congress made changes to the FRSA that significantly protect railroaders’ jobs and safety by making it illegal for employers to adversely treat railroad workers for trying to ensure the safety of passengers, fellow employees, and the public.

The FRSA specifically prohibits railroad companies from retaliating against employees who engage in “protected activities,” which include:

• Reporting a dangerous condition on the railroad
• Accurately reporting hours of service on the railroad
• Refusing to violate any federal law or regulation relating to railroad safety
• Refusing to perform unsafe activities on the railroad, or, for supervisors, refusing to order other workers to perform unsafe activities; or
• Reporting one’s own work-related injury or illness, or a co-worker’s injury or illness, to the railroad

When a railroader has engaged in one of those protected activities, the law states that the railroad “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 that protected activity. The “in whole or in part” language in the law is important: if the railroad disciplines a railroader in part because of protected activity, and in part due to other reasons, the railroader still is protected under the FRSA.

Protection for Reporting Railroader Injuries

The FRSA offers other important employment protections for railroad workers, too. For example, when an employee is injured on the job, railroads are prohibited from denying, delaying, or interfering with that employee’s medical treatment, nor can the railroad retaliate against an employee for following his treating doctor’s restrictions or treatment plan.

If the employer violates the law, the railroad can be forced to:

• Re-hire a fired employee and rescind any discipline imposed
• Reinstate lost seniority
• Pay back all lost wages and other financial losses caused by the retaliation, with interest added, and
• Reimburse the railroader for expenses incurred, including attorney’s fees.

In cases where the railroad’s conduct is considered particularly egregious, the FRSA provides for punitive damages of up to $250,000.

Have You Been the Victim of Workplace Retaliation?

If you are a railroad worker and have been subjected to retaliation by your employer, you must act quickly to protect your rights under the FRSA.

The statute requires that you file a complaint with the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) within 180 days of the date when you knew or should have known that the railroad engaged in retaliation. OSHA will investigate the complaint when it is filed, but, if it does not issue a final decision within 210 days of the filing, you can begin a lawsuit in federal court against the railroad, and you are entitled to a jury trial. If a complaint is not filed with OSHA during the initial 180-day window, however, you lose all rights and protections under the FRSA.

If you believe you have been a victim of employer retaliation for reporting an injury, refusing to perform dangerous work, or engaging in any of the other protected activities described above, you need to contact an experienced railroad attorney immediately! The railroad lawyers at Sommers Schwartz have extensive experience in representing injured and mistreated railroaders in all crafts, across the U.S. We will help you determine if you have a case, and if so, fight to recover the compensation and protections you deserve.