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Be Prepared for Claims of Retaliation Under the Federal Railroad Safety Act

By Bryan C. Graff

Defending claims under the Federal Railroad Safety Act, 49 U.S.C. § 20109 (“FRSA”) is a major challenge facing railroad carriers in the Northwest and throughout the Country. Congress intended for railroads to face a difficult time defending themselves against whistleblower and retaliation claims under the FRSA and it structured the FRSA to be unusually protective of employees. Consider, for example, that in order to trigger liability an employee need only show that protected activity (e.g., reporting an injury or illness, hours on duty, or a hazardous safety or security condition, among others) was a “contributing factor” to an allegedly unfavorable personnel action. The employee need not prove a retaliatory motive, or even that his or her protected activity was a significant, motivating, or predominant factor underlying the personnel decision. Rather, a “contributing factor” is any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision. In other words, even where it is determined that 99% of the reason that a railroad carrier disciplined an employee is lawful, if 1% is found to have been based upon an employee’s protected activity, liability may be imposed under the FRSA. The burden then shifts to the railroad carrier (under a heightened “clear and convincing” burden of proof) to establish that it would have taken the same action in the absence of the employee’s protected activity. As the Third Circuit Court of Appeals has observed, “for employers, this is a tough standard, and not by accident.” Araujo v. N.J. Transit Rail Ops., Inc., 708 F.3d 152, 159 (3d Cir. 2013).

FRSA liability can also carry heavy consequences. In addition to any relief and compensatory damages necessary to make the employee whole, which may include reinstatement, back pay with interest, and emotional distress damages, the FRSA also allows for litigation costs, expert witness fees, and reasonable attorneys’ fees to prevailing plaintiffs. Punitive damages also may be awarded in the action up to $250,000.00.

Railroad carriers should carefully evaluate their risk and potential exposure under the FRSA prior to taking disciplinary action against their employees. In addition, critical analysis of the railroad carrier’s incident reporting, safety, risk identification, and disciplinary policies and protocols is essential to curtailing FRSA claims and potential exposure. Members of Ryan Swanson’s experienced transportation group recently tried to verdict one of the first FRSA jury trials anywhere in the Country. Our knowledgeable team stands ready to assist in meeting the challenges presented railroad carriers by the recent amendments to the FRSA. If you would like additional information, please contact us.

Bryan Graff and Jim Shaker are attorneys in Ryan, Swanson & Cleveland, PLLC’s Transportation Group. Bryan can be reached at 206.654.2278 or [email protected]. Jim can be reached at 206.654.2261 or [email protected].

This message has been released by the Transportation Group at Ryan, Swanson & Cleveland, PLLC to advise of recent developments in the law. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice on any specific facts and circumstances. Ryan, Swanson & Cleveland, PLLC is a full-service law firm located in Seattle, Washington.

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