Whistleblower Protection for Railroad Employees

Employees working for railroad carriers are protected from retaliation for reporting certain safety or security violations to their employers or the government.

On August 3, 2007, the Federal Rail Safety Act (FRSA), 49 U.S.C. Section 20109, was amended by The Implementing Recommendations of the 9/11 Commission Act (Public Law 110-53) to transfer authority for rail carrier employee whistleblower protections to OSHA, and to include new rights and remedies.

Covered Employers
Under FRSA, an employee of a railroad carrier and its contractors and subcontractors is protected from retaliation for reporting certain safety and security violations.

In general, under FRSA, a railroad carrier is covered if it provides any form of nonhighway ground transportation that runs on rails or electromagnetic guideways, including commuter or other short-haul railroad passenger service in a metropolitan or suburban area, certain commuter railroad services, and high speed ground transportation systems that connect metropolitan areas. However, rapid transit operations in an urban area that are not connected to the general railroad system of transportation are not covered.

Protected Activity
If your employer is covered under FRSA, it may not discharge or in any other manner retaliate against you because you provided information to, caused information to be provided to, or assisted in an investigation by, a federal regulatory or law enforcement agency, a Member or committee of Congress, or your company, about an alleged violation of federal laws and regulations related to railroad safety and security, or about gross fraud, waste or abuse of funds intended for railroad safety or security. Your employer may not discharge or in any manner retaliate against you because you filed, caused to be filed, participated in, or assisted in a proceeding under one of these laws or regulations. In addition, employees of railroad carriers are protected from retaliation for reporting hazardous safety or security conditions, refusing to work under certain conditions, or refusing to authorize the use of any safety or security related equipment, track or structures.

Unfavorable Employment Actions
Your employer may be found to have violated this statute if your protected activity was a contributing factor in its decision to take unfavorable employment action against you. Such actions may include:

• Discharge or lay-off
• Blacklisting
• Demoting
• Denial of overtime or promotion
• Disciplining
• Denial of benefits
• Failure to hire or rehire
• Intimidation
• Reassignment affecting prospects for promotion
• Reducing pay or hours

Deadline for Filing Complaints
Complaints must be filed within 180 days after the alleged unfavorable employment action occurs (that is, when the complainant becomes aware of the retaliatory action).

How to File a Complaint
An employee, or representative of an employee, who believes that he or she has been retaliated against in violation of this statute may file a complaint with OSHA. It is important to note that the FRSA prohibits complainants from filing multiple discrimination complaints under other laws for the same allegedly unlawful act of the employer.

The complaint should be filed with the OSHA office responsible for enforcement activities in the geographical area where the employee resides or was employed, but may be filed with any OSHA officer or employee. Complaints may be filed orally or in writing, by mail (we recommend certified mail), fax, or hand delivery during business hours. The date postmarked, faxed or hand delivered is considered the date filed.

Results of the Investigation
If the evidence supports your claim of retaliation and a settlement cannot be reached, OSHA will issue an order requiring your employer to reinstate you, pay back-wages, restore benefits, and other possible relief to make you whole, including:

• Reinstatement with the same seniority and benefits.
• Payment of back pay with interest.
• Compensatory damages, including compensation for special damages, attorney's fees, expert witness fees, and reasonable attorney fees.
• Punitive damages not to exceed $250,000, in certain cases.

OSHA's findings and order become the final order of the Secretary, unless they are objected to within 30 days.

Hearings and Review
After OSHA issues its findings and order, either party may request an evidentiary hearing before an administrative law judge of the Department of Labor. The administrative law judge's decision and order may be appealed to the Department's Administrative Review Board for review.

If a final agency order is not issued within 210 days from the date your complaint is filed, then you have the option to file a civil action in the appropriate U.S. district court.