OSHA has announced three FRSA "whistleblower" awards to railroad employees. As explained in the OSHA press release, over $650,000 was awarded to three separate employees, with each case including a punitive damages award by the DOL.
Also in Whistleblower news, OHSA has published its Final Rule governing the handling of retaliation complaints made under the Surface Transportation Assistance Act of 1982 (STAA). The STAA, as amended, covers commercial motor vehicle safety and security. The Final Rule is attached here. Among other things, the rule provides that a violation of the whistleblower protections in the Act may be found if the protected activity was a "contributing factor" to the adverse action alleged. For the defending party, relief is to be denied if it is shown by clear and convincing evidence that it would have taken the same adverse action in absence of the protected activity. In other words, the adverse action (i.e. discipline or termination for example) was not a result of the whistleblowing, as it were. The remainder of the final rule generally brings STAA actions in line with other whistleblower statutes and procedures enforced by OSHA.
Showing posts with label whistleblower. Show all posts
Showing posts with label whistleblower. Show all posts
Wednesday, August 1, 2012
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.
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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