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Managed by Paul J. Loftus, a partner at Dinsmore & Shohl LLP, Transportation Law Today provides professionals in the rail, transit, inland maritime, and trucking industries with current news and analysis of laws, rulings, and regulatory policies.



Tuesday, July 17, 2012

FRA & OSHA Enter Agreement to Enforce FRSA Whistleblower Complaints

The Federal Railroad Administration (FRA) has announced an agreement with the Department of Labor's Occupational Safety & Health Administration (OSHA) to "Protect Railroad Workers from Retaliation." The FRA's press release is attached here. The agreement addresses whistle blower complaints made under the Federal Rail Safety Act (FRSA), specifically, 49 USC 20109.

The agreement, or MOA in government-speak (Memorandum of Agreement) between the agencies, is attached here.

Under the FRSA, as amended in 2007, rail workers can bring complaints of harassment and other issues to OSHA for treatment as a whistle blower complaint, under an administrative process. Various complaints by employees have resulted in monetary awards to whistle blowers, including at times punitive damages awarded by the DOL's Administrative Law Judges. It remains to be seen whether some of the more significant rewards are litigated beyond the DOL administrative process, which I predict will happen.

With regard to the FRA/OSHA agreement, the MOA essentially is an information sharing agreement under which FRA is to advise rail employees who bring complaints to them of their right to bring the complaint to OSHA. Likewise, OSHA will send the FRA complaints it receives under the FRSA for potential violations of FRA regulations. Also, OSHA is to advise FRA when it "learns of a potential violation of an FRA accident/incident reporting violation under 49 CFR part 225, or other violation of federal rail safety regulations."

Finally, FRA's enforcement staff is to be trained in "recognizing complaints of retaliation under 49 USC 20109" and to assist OSHA staff "in recognizing potential violations of Federal railroad safety regulations revealed during investigations" under the FRSA.

A likely result then from a whistle blower complaint to OSHA from a rail employee is a potential FRA citation, and fine, for a violation of FRA regulations uncovered by the employee's complaint. In other words, potentially two penalties for the same alleged conduct.

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