Beginning in 1980, the Federal Railroad Safety Authorization Act provided whistleblower protection to railroad employees who filed a complaint or instituted a proceeding under or to enforce the federal railroad safety laws, or testified in any such proceeding. Railroads were also prohibited from discriminating against or discharging railroad employees for reasonably refusing to work in hazardous conditions. The Federal Railroad Safety Authorization Act of 1994 (FRSA) re-codified this whistleblower provision in 49 U.S.C. 20109. In 2007, Congress amended 49 U.S.C. 20109 by significantly expanding the whistleblower protection of railroad employees and transferring enforcement of the section to the Department of Labor (DOL). In 2008, Congress further amended 49 U.S.C. 20109 to add additional protection for employees who request first aid or medical treatment or follow their physician’s treatment plan.
Due to the potential overlap of jurisdiction, and the potential for railroad employees to notify the Federal Railroad Administration (FRA), rather than OSHA, of violations of the FRSA, the two agencies entered into Memorandum of Agreement to delineate the areas for which each agency would assume responsibility. Under this agreement, each agency will “carry out their respective statutory responsibilities independently . . . [but recognize], that administrative efficiency and sound enforcement policies will be maximized by cooperation and the timely exchange of information in areas of mutual interest.”
As part of this agreement, if an employee reports the suspected violation to the FRA, the FRA must provide the employee with the contact information for OSHA and remind the employee that he or she only has 180 days to file the claim with OSHA. OSHA will provide documentation of the complaint and may provide documentation of the investigation to the FRA. The FRA will evaluate the complaint for violations of FRA regulations. The FRA must assist in the investigation at OSHA’s request and will provide training with OSHA’s assistance to ensure that FRA staff can recognize workplace safety violations that must be reported to OSHA.
These developments come at a time when OSHA has received over 900 complaints under the FRSA claims in the past six years, with approximately 63% of those complaints stemming from an allegation of retaliation against an employee for reporting an on-the-job injury.
For more information, see Doran & Murphy’s discussion of railroad worker injuries. If you are a railroad employee or a loved one of a railroad employee who has been injured on the job and retaliated against, contact us for more information about your legal rights and the investigative process.