Our attorneys discuss the FRSA and how it can effect your train workers in Texas.
Originally passed in 1970 and revised most recently in 2007, the Federal Railroad Safety Act (FRSA) seeks to protect injured railroad workers from being fired or retaliated against because they attempt to seek the compensation they deserve from their employers. In order to understand the need for the FRSA, we must first examine how railroad workers pursue benefits after being injured on the job.
In this article our attorneys explain how FELA and the FRSA act differ and how we will help you in your case.
Questions answered in this article:
- What has been the policy for rail workers injured on the job?
- What are some issues with FELA?
- What is the Federal Railroad Safety Act?
- How will my attorney handle my FRSA claim?
Past history of employee injuries on the railroad:
Since railroads first began crisscrossing the United States, working on or around trains has been an extremely dangerous profession. Once the nation's infrastructure of rails had been laid in the early 20th Century, Congress turned its attention to protecting railroad workers and finding a way to provide for injured workers and the families of those who were killed on the job.
Generally speaking, each state has the right to determine how injured workers will be compensated, with the oldest laws on record dating back to Georgia and Alabama in 1855. Today, all states now have some form of workers' compensation laws and benefits schedule in place. Since railroads represent interstate commerce and were more hazardous to their employers than the average job, Congress passed the Federal Employers' Liability Act (FELA) in 1908, giving railroad employees different rights in pursuing compensation.
When a worker in most fields gets hurts on the job, his or her ability to receive workers' compensation benefits is limited to a precise schedule that has been established by the state where the injury took place. According to FELA, however, injured workers who wish to be compensated must sue their employers or at least threaten to sue in order to work out a mutually agreeable settlement. While the FELA system makes compensation less certain than the workers' comp system, it also permits the injured train worker to be paid the total value of his injuries, his pain and suffering, and the time missed from work. In most cases, workers' compensation benefits only cover the financial costs of the injuries and a percentage of work missed while recovering.
The bigger problem with FELA:
Provided a grieving family finds an experienced train accident attorney, the FELA system works very efficiently for them when someone is killed while working on the railroad. However, when a worker is injured on a job, there was a serious drawback with the way FELA was conceived. When many workers filed FELA lawsuits against their employers, the railroad responded by firing them. Thus, the workers received monetary compensation to help them for the time being, while losing a way to provide for themselves and their families in the future.
Enter the FRSA:
To address this problem, Congress passed the Federal Railroad Safety Act (49 U.S.C, Section 20109), which offered protection to workers who filed lawsuits against their employers, as well as, those who engaged in certain other actions that would become known as "protected activities." Among the activities protected by the FRSA are:
- Notifying the employer about a hazardous safety condition
- Informing the railroad about a worker being hurt on the job (either you or someone else).
- Refusing to break a federal law, rule, or regulation relating to the safe operation of the train.
- Reporting the railroad for violating any federal law, regulation, or rule.
- Contacting the Whistleblower Office of the Occupational Safety and Healthy Administration in order to file an FRSA complaint
- Testifying about an FRSA complaint that has already been filed
- Conforming to the treatment plan provided by an attending physician.
- Reporting hours of duty as required by the Hours of Service Act
- Declining to perform job duties in unsafe conditions or using unsafe equipment.
- Providing information or in any other way cooperating with an investigation by the FRA, NTSB, or some other government agency that is investigating a railroad accident.
- Giving a regulatory agency evidence of the waste of public funds intended to promote railroad safety due to fraud or abuse
If a Texas railroad employee does any of the above actions, then the railroad is forbidden from retaliating against him or her in any way, including: reprimand, dismissal, demotion, intimidation, denial of promotion, or refusal of benefits.
When a railroad worker becomes aware (or reasonably should have become aware) that the railroad has taken punitive action against him or her in response to a protective activity, he or she has 180 days to report the incident to OSHA's Office of Whistleblower Protection, which will assign an investigator to look into the situation. The investigator will examine the physical evidence available, obtain a written response from the railroad, and interview the worker who filed the complaint, his co-workers, managers, and anyone else who can shed light on the situation. When the OSHA investigator rules that a violation has taken place, he or she will order that the employer remedy the situation. Such remedies may include:
- Immediate reinstatement to job duties with full pay and benefits
- Payment of back salary plus interest
- Attorney fees and court costs
- Removal of any record of disciplinary action from the employee's record
- Punitive damages, with a cap of $250,000
- Compensatory damages for mental and emotional trauma or any financial losses resulting from the railroad's disciplinary actions.
Why You Need an Attorney to Deal with an FRSA Claim
On the other hand, both the railroad and the employee have the right to appeal the findings of the investigator from OSHA's Office of Whistleblower Protection, and then the case will be heard by a federal administrative law judge (ALJ). Moreover, the ruling of the ALJ can be appealed to the federal Administrative Review Board.
In the event a final ruling is not reached within 210 days, then the employee may take the FRSA complaint to federal district court for a jury trial, with all of the penalties permissible by the FRSA rules permitted.
How your attorney will handle your FRSA case:
In order to succeed with such a case, you must be able to prove that the employee took some sort of protected action, the railroad had suspicions or actual knowledge of the protected activity, and this knowledge of the protected activity was a factor in the railroad's punishment. It's not necessary to prove that the railroad acted out of revenge, but just that the disciplinary action taken by the employer was in response to the protected activity.
In order to fight these charges after the existence of the protected activity by the employee and the punitive action by the employer have been demonstrated, the employer can only argue that the adverse action against the employee would have been taken had the protected activity never occurred. The good news for you on this front is that the standard of proof is much higher than in a typical personal injury case. The employer must present "clear and convincing evidence" instead of convince the jury by the preponderance of evidence as is typically the case in a civil lawsuit.
Once you file a FELA lawsuit or take some other from of protected action that could harm your railroad employer, you need an attorney looking out for your rights. Not only do you need an experienced train accident lawyer handling your FELA lawsuit, but also, making sure you receive the protection you're due from FRSA. The railroad that you'll be squaring off with probably does many, many millions of dollars in business, so it's likely going to come at you with a team of attorneys. You need to make sure your rights and interests are protected, and you don't want to wait until 210 days have passed, and you're still waiting for a ruling on an appeal of OSHA's decision. You need an attorney conducting an independent investigation now, while the evidence can still be found that allows your attorney to build a formidable case.
Call Grossman Law Offices today at (855) 215-3240 (toll free) to find out how we can help you resolve your FRSA claim. Our attorneys have been litigating on-the-job accident cases for more than two decades, and we can.
Related Articles For Further Reading:
- Tricks Claims Adjusters Use to Avoid Paying Out on Train Accident Injuries
- Who Is Liable When a Train Strikes a Car?
- A Look at Different Classes of Railroads