The Federal Railroad Safety Act (FRSA) was amended in 2007 to include new rights and remedies to railroaders, to protect them from retaliation by their employers. The FRSA was amended again in 2008 specifically to prohibit railroads from disciplining their employees for requesting medical treatment or for following their physician’s orders. Congress passed these amendments because it was concerned that rail carriers were pressuring employees not to report injuries and accidents.
Federal Railroad Safety Act Whistleblower Provisions
Under the whistleblower provisions of FRSA, a 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 an employee’s participation in one of the named protected activities.
Recovering Under Federal Railroad Safety Act
To recover under the FRSA, an employee must show that: (1) he or she engaged in a protected activity; (2) the employer knew that he or she engaged in the protected activity; (3) he or she suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor to an adverse personnel action such as discipline, threats, denying medical treatment, denying overtime or promotion.
In fact, allegations of wrongdoing do not require the employee to conclusively demonstrate the employer’s retaliatory motive. The employee needs to establish only the four criteria listed above. Once a rail worker has shown sufficient evidence for a case to be reviewed by a court (also known as a prima facia case), the burden to disprove allegations of wrongdoing shifts to the employer (railroad).
Therefore, in a whistleblower action against a railroad, it is up to the railroad to demonstrate by clear and convincing evidence that the employer-railroad would have taken the same adverse personnel action in the absence of the protected activity. For employers, this task is, according to the courts, purposely a tough standard.
If you are a railroad worker and you believe that you have been wrongfully disciplined, threatened or fired by your railroad, you should contact a lawyer who understands the Federal Railroad Safety Act (FRSA) and the rights and remedies afforded to railroaders to protect them from retaliation by their employers.