workers on railroad

The Federal Employers’ Liability Act (FELA) is a federal law that provides an avenue for railroad workers and their families to pursue financial compensation in the event they are injured on the job. The law was enacted in response to inherent dangers associated with employment in the railroad industry. Unlike workers’ compensation laws, which only provide damages for past and future wage loss and medical treatment, the FELA allows railroad workers to recover damages for pain, suffering, and emotional distress, in addition to wage loss and medical expenses. This means railroad workers can recover full and fair compensation for their injuries.

Railroads and outside contractors

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. Outsourced jobs include derailment cleanup, track maintenance, as well as switching and loading operations. When railroad companies hire outside 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 in certain circumstances.

When can employees of contractors recover damages under the FELA?

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: (1) if they qualify as a “borrowed servant” of the railroad, (2) if they are a servant acting for two masters simultaneously, or (3) if they are subservient of a company that was, in turn, a servant of the railroad. This is not a bright-line rule and requires courts to perform a factual analysis of the railroad-contractor relationship.

What is a borrowed servant?

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. In making this determination, courts may look to relevant factors, including: who selected and engaged the employee to perform the work; 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, and who had the power to fire or dismiss the plaintiff from the work. While none of these factors are determinative, the overriding consideration is control.

Don’t let the railroad fool you

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 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.