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 FRSA. Show all posts
Showing posts with label FRSA. 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.
Tuesday, July 3, 2012
PHMSA Rules Tort Claim for Haz Mat Package Warning Preempted
The USDOT's Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a ruling, published in today's Federal Register, which preempts a common law tort action for design, manufacture and marking (including warnings) for a haz mat package.
The underlying event was the explosion of a DOT specification 39 cylinder, which exploded in January 2003 when placed in 180 deg. water. The explosion killed Kenneth Elder, whose survivors brought a product liability action against the cylinder manufacturer.
PHMSA's ruling came after the manufacturer petitioned the agency to make a preemption ruling on the underlying tort claims. The Hazardous Materials Transportation Act gives the agency authority to make such rulings, under 49 U.S.C. 5125(d).
Under the HMTA, claims relating to design, manufacture and labeling are preempted if the "non-federal requirement (i.e. a lawsuit seeking to impose an additional warning) is not "substantively the same" as federal regulation under the haz mat act. This is a somewhat different standard than preemption under the Federal Rail Safety Act (FRSA) - 49 U.S.C. 20106 - which permits more stringent state regulation covering the same subject matter as federal rail regulations if the state regulation is meant to address a local safety hazard and does not burden interstate commerce.
PHMSA determined that any "state requirement, including a State's common law" which is not substantively the same as the federal regulations on the design, manufacturing, or marking of a haz mat package is preempted, and thus, the underlying claim that Mr. Elder's death was a result of an improper design, marking, or warning of the cylinder was preempted. PHMSA did emphasize, however, that the HMTA preemption provision does not insulate anyone from violating a haz mat regulation or when the packaging does not conform to a specification under the haz mat regulations.
The procedure utilized by the defendant manufacturer, filing an administrative petition with PHMSA seeking a preemption ruling, is interesting. Unlike the FRSA, the HMTA specifically permits PHMSA to make a preemption decision on the legal claims brought Mr. Elder's survivors. So, in effect, an administrative agency has made a preemption decision which presumably will end a legal case pending in the Courts.
The underlying event was the explosion of a DOT specification 39 cylinder, which exploded in January 2003 when placed in 180 deg. water. The explosion killed Kenneth Elder, whose survivors brought a product liability action against the cylinder manufacturer.
PHMSA's ruling came after the manufacturer petitioned the agency to make a preemption ruling on the underlying tort claims. The Hazardous Materials Transportation Act gives the agency authority to make such rulings, under 49 U.S.C. 5125(d).
Under the HMTA, claims relating to design, manufacture and labeling are preempted if the "non-federal requirement (i.e. a lawsuit seeking to impose an additional warning) is not "substantively the same" as federal regulation under the haz mat act. This is a somewhat different standard than preemption under the Federal Rail Safety Act (FRSA) - 49 U.S.C. 20106 - which permits more stringent state regulation covering the same subject matter as federal rail regulations if the state regulation is meant to address a local safety hazard and does not burden interstate commerce.
PHMSA determined that any "state requirement, including a State's common law" which is not substantively the same as the federal regulations on the design, manufacturing, or marking of a haz mat package is preempted, and thus, the underlying claim that Mr. Elder's death was a result of an improper design, marking, or warning of the cylinder was preempted. PHMSA did emphasize, however, that the HMTA preemption provision does not insulate anyone from violating a haz mat regulation or when the packaging does not conform to a specification under the haz mat regulations.
The procedure utilized by the defendant manufacturer, filing an administrative petition with PHMSA seeking a preemption ruling, is interesting. Unlike the FRSA, the HMTA specifically permits PHMSA to make a preemption decision on the legal claims brought Mr. Elder's survivors. So, in effect, an administrative agency has made a preemption decision which presumably will end a legal case pending in the Courts.
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