FRSA Whistleblower Claims

The Federal Rail Safety Act, 49 U.S.C. Section 20109, enacted in 2007, prohibits railroads from disciplining, discharging or taking other adverse action against an employee who engages in certain “protected activity.” Protected Activity includes: notifying the railroad of a work-related injury or occupational illness; reporting a hazardous safety condition; or providing information regarding a violation of any federal law, rule, or regulation relating to railroad safety.

Once an employee establishes that his or her protected activity was a contributing factor in the adverse action, a railroad must prove by “clear and convincing evidence” (which is a higher standard of proof than a preponderance of the evidence) that it would have taken the same action in the absence of the protected activity. This can be a heavy burden for the railroad to carry.

The FRSA is also a “make whole” statute. When a claimant prevails in a claim under the FRSA, the fact finder (be it OSHA, a judge, or a jury) has the power to order any and all remedies necessary to make the employee whole, including: reinstatement; back pay with interest; compensatory damages (mental or emotional distress); punitive damages up to $250,000; and attorneys fees and costs. A well-coordinated defense is critical for these potentially dangerous claims.

Our attorneys have over 80 combined years of experience defending the nation’s railroads against numerous types of claims including crossing accidents, trespasser claims and claims under the Federal Employer’s Liability Act. Since the enactment of the FRSA, we have combined this experience with our experience in labor and employment law to defend one of the nation’s leading Class I railroads against claims under the FRSA. We have also applied our decades of experience defending the railroads to develop a coordinated defense to exemplary/punitive damage claims under the FRSA.