Railroad companies are growing increasingly dependent on the work of outside contractors and subcontractors. As such, many are unaware of their legal rights in the event they are injured. Though the railroads may claim contractors are ineligible for compensation under the Federal Employers Liability Act (FELA), this is not always true. The courts will examine the nature of the work and whether or not the railroad exercised control over the worker to be considered an employee in accordance with federal law. As such, if you are injured, the following blog explores what you should know about these difficult matters and the importance of working with a FELA attorney.
Why Railroads Use Contractors, and Why It Legally Matters
There is a growing trend in the railroad industry to reduce employment and hire outside contractors to perform the work previously done by railroad employees. When railroad companies hire independent contractors, they often try to contractually limit their liability. This can leave employees of contractors and subcontractors in a difficult position in the event they are seriously injured on the job. Fortunately, courts have held that liability under the Federal Employers’ Liability Act cannot be contractually waived by an “independent contractor” label in certain circumstances.
Common Railroad Jobs Now Outsourced
- Derailment cleanup involving heavy machinery and hazardous materials
- Track maintenance and repairs under railroad supervision
- Switching operations inside rail yards
- Loading and unloading under railroad direction
- Signal installation and electrical work
Why Outsourcing Creates Legal Disputes
- Despite working side-by-side with rail employees, independent contractors generally lack the same legal protections
- Contracts often attempt to shift liability from the railroad to the contractors
- Injured workers may be instructed to pursue workers’ compensation
- Courts will consider who authorized and controlled the work
When Can a Contractor Qualify for FELA Protection?
In accordance with federal law, eligibility for compensation under FELA depends on the true working relationship between the railroad and the injured worker. As such, the courts will examine a number of legal doctrines that center around control and supervision, rather than titles and labels.
The Three Legal Doctrines That May Extend FELA Coverage
In Kelley v. S. Pac. Co., 419 U.S. 318 (1974), the United States Supreme Court ruled that non-railroad employees are nevertheless covered by the FELA in three circumstances:
- Borrowed Servant Doctrine: The railroad temporarily controls the worker’s day-to-day job duties
- Dual Servant Doctrine: The worker serves the contractor and the railroad at the same time
- Subservant Doctrine: The contractor company itself acts as a servant of the railroad
What Makes Someone a “Borrowed Servant” Under FELA?
When determining whether a person is a borrowed servant or dual servant under the FELA, the primary factor used to determine whether a worker is an employee, i.e., “borrowed servant,” of a railroad is whether the company had the power to direct, control, or supervise the employee in the performance of his or her work at the time of their injury.
Factors Courts Consider When Determining Control
- Who selected and engaged the employee to perform the work
- Who had the power to stop or change the work being performed
- Whether railroad supervisors provided instructions on how the work is performed
- Who furnished the tools with which the work was performed
- Who paid the employee his wages for the performance of the work
- The amount of such wages
- Who had the power to fire or dismiss the plaintiff from the work
It’s important to understand that no single factor will determine the outcome of the case, as the court will weigh all of these factors together.
How Do FELA Claims Differ From Workers’ Compensation for Contractors?
Even if a contractor carries workers’ compensation insurance, it does not mean they cannot pursue compensation under FELA if the railroad is legally considered their employer.
Important Differences Injured Contractors Must Know
- Under FELA, you must prove that the railroad was at least partially negligent for the accident and subsequent injuries
- You can recover more damages under FELA, like pain and suffering and full lost wages
- Workers’ compensation generally only covers medical costs and partial lost wages
- FELA allows lawsuits in court
- Railroad companies cannot avoid liability under FELA through contracts alone
What Situations Could Trigger FELA Coverage for Injured Contractors?
Understanding common instances in which an injured contractor may be eligible to recover compensation is critical to knowing whether or not you have a valid claim.
Situations Where Courts Often Find Railroad Control
- A track repair contractor is working under a railroad foreman’s direct supervision
- A switching crew member must follow daily instructions from yardmasters employed by the railroad
- A signal technician must adhere to railroad safety rules
- A cleanup worker is provided with tools and equipment from the railroad to use during recovery
- A contractor is injured while performing duties essential to train movement.
Contact an Experienced FELA Attorney With Our Firm Today
The complexity of the “borrowed servant” or “dual servant” rule for railroad contractors is one of the many reasons why you should always contact an experienced FELA attorney with Doran & Murphy if you are injured on the railroad. You are not prevented from pursuing maximum compensation merely because your employer or the railroad says so. If you have been injured while performing work for a railroad contractor or subcontractor, call us today to find out what compensation you may be entitled to.
