Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

We are pleased to repost, with permission, this blog entry by Charlie Goetsch from trainlawblog.com, announcing a favorable and precedent-setting decision by the Department of Labor's Administrative Review Board (ARB). Congratulations to Charlie Goetsch for obtaining the outstanding result for his client, and for ending the era of railroad interference in the medical care of its workers.

By Charlie Goetsch:

In a decision that will send shock waves reverberating throughout the railroad industry, railroad medical departments now are prohibited from doing anything that directly or indirectly interferes with the treatment prescribed by an injured worker's treating doctor for the entire period of medical treatment, not just immediately after an injury. Once again, thanks to the Federal Rail Safety Act, the balance of power is shifting from management to rail labor, and railroad medical departments will never be the same.

Here's the context. When a chair at his Metro North Railroad work place collapsed as he sat down, my client Anthony Santiago suffered an injury to his low back. Metro North ordered him to go to its Medical Department, which confirmed he had an occupational back injury and advised him to see an orthopedic physician. For two months Metro North followed its policy of paying the medical bills for occupational injuries. However, when a MRI scan confirmed Santiago had a herniated disc and his doctor prescribed treatment for the disc, Metro North's Medical Department immediately reclassified Santiago's occupational back injury as "non-occupational" and refused to pay for the treatment. As a result, Santiago suffered a four month delay in his prescribed treatment and was forced to pay $16,520 in medical expenses out of his own pocket.

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This week, OSHA found that Norfolk Southern Railway Co., a major transporter of commodities based in Norfolk, Virginia, owed over $800,000 in damages to three whistleblowers. These actions are the most recent of a number of OSHA decisions against Norfolk Southern Railway Co. in the past year. OSHA found that the company continues to retaliate against employees for reporting work-related injuries and has created a chilling effect on the railroad industry.

On August 14, 2009, the first of the three whistleblowers was terminated after reporting an injury as a result of being hit by the company’s gang truck. The railroad charged the employee with improper performance of duties. As the only employee actually injured in the incident, the whistleblower was the only one to report an injury and the only employee fired. OSHA ordered the company to pay punitive damages of $200,000, compensatory damages of $110,852, and attorney’s fees of $14,325.

The second whistleblower was was terminated on March 31, 2010, after reporting an injury as a result of a fall. After an investigative hearing, which OSHA found to be flawed and intentionally biased against the employee, the company charged him with falsifying his injury. OSHA ordered $150,000 in punitive damages, $50,000 in compensatory damages, and $7,375 in attorneys fees.

The final employee was terminated on July 22, 2010, after reporting a head injury after falling down a flight of stairs. The day before this injury occurred, the employee had been declared an excellent employee. In the previous 35 years, he had not missed any work time due to injuries. Norfolk Southern Railway Co. decided that he had falsified the injury report, failed to promptly report the injury, and had made false and conflicting statements. OSHA found that the company’s hearing on the matter had been flawed and ordered the railroad to pay the employee $175,000 in punitive damages, $76,732.27 in back wages, and $17,993.43 in compensatory damages.

“Firing workers for reporting an injury is not only illegal, it also endangers all workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury can occur,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “To prevent more injuries, railroad workers must be able to report an injury without fear of retaliation. The Labor Department will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights. Employers found in violation will be held accountable.”

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Today, attorney Stephen Kohn (Executive Director of the National Whistleblowers Center) and I are filing an amicus brief with the U.S. Department of Labor's Administrative Review Board (ARB). The brief urges the ARB to affirm a decision of an Administrative Law Judge (ALJ) in favor of Christopher Bala, a signalman for the PATH railway that carries commuters between New Jersey and New York City. As one of the first cases the ARB will address under the 2008 amendments to the Federal Rail Safety Act (FRSA), this case could set the tone for railroad workers cases for years to come.

Christopher Bala suffered a back injury at home in June 2008. His doctor ordered him to rest and refrain from work through the end of the next month. PATH's doctor agreed that he should not work. Still, his supervisor decided to launch a disciplinary hearing against him for violating PATH's absenteeism policy. In October 2008, Congress amended the FRSA to protect rail workers when they follow their medical treatment plans. The 2007 version of the FRSA already protected rail workers who raise concerns about safety or refuse to perform duties they reasonably believe are unsafe. Notwithstanding the change in the law, PATH proceeded with the disciplinary hearing against Bala. PATH eventually found him guilty of absenteeism and imposed a suspension. Bala complained to OSHA which ruled in his favor. PATH requested a hearing, and the ALJ again found that PATH violated the FRSA by imposing discipline on Bala. The ALJ held that the FRSA protects rail workers when they follow medical treatment plans for injuries that occurred on or off the job.

On appeal to the ARB, PATH has argued that the FRSA was only meant to encourage workers to report on-the-job injuries. PATH ignores portions of the congressional record showing that Congress wanted to reduce the number of rail accidents. PATH is asking the ARB to adopt an interpretation of the FRSA that would add a limitation that is not in the words Congress used. PATH is also asking to be exempt from the FRSA in cases where the disciplinary process was started before the effective date of the 2008 amendments to the FRSA. The Association of American Railroads (AAR), submitted its own amicus brief supporting PATH. It argued, without supporting data, that the ALJ's holding would impose costs on railroads, and go against the holdings of arbitrators and courts applying other laws.

The NWC amicus focuses on the plain language of the FRSA which explicitly protects railroad workers when they are following medical treatment plans. The brief reviews the legislative history behind the FRSA and shows that members of Congress wanted to save lives by reducing accidents. The brief explains how the FRSA fulfills the safety purpose by preventing management from pressuring workers to work when their medical condition could make them impaired. The brief sets out how similar laws for truck drivers (STAA) and airline workers (AIR21) protect them when they refuse to work due to medical impairments. The NWC amicus challenges the AAR's claims about costs, and the holdings of courts under other laws. It challenges the PATH brief for arguing that it should be allowed to continue its discipline of Bala even after the FRSA was amended to make that discipline unlawful.

I am particularly pleased to submit this amicus brief in one of the first cases under the new FRSA. Corporate fraud whistleblowers suffered for years when the ARB's initial decisions under the 2002 Sarbanes-Oxley Act (SOX) required a high standard for whistleblowers to win. The ARB finally abated that problem in last year's Sylvester case. With a good decision for Bala, rail workers may find the protection they need to avoid untold future accidents.  For that, we will all be safer.

Available here are:

• PATH's brief against Bala
• AAR's amicus brief against Bala
• Bala's brief
• NWC's amicus brief in support of Bala
• Solicitor of Labor's amicus brief in support of Bala

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Tune in tomorrow at 1:00pm EDT to Honesty Without Fear on Progressive Radio Network.

In the first half hour, Steve Kohn discusses the updates in the FDA whistleblowers case and Congressional investigations of FDA manager misconduct. Find out how this case can impact every federal agency’s ability to monitor its employees and silence those who want to alert the public about health and safety issues.

You can take action to protect the FDA whistleblowers and demand the government stop illegally targeting whistleblowers for surveillance here.

In the second half hour, Richard Renner interviews Charlie Goetsch about the Federal Rail Safety Act (FRSA). Mr. Goetsch is a founding partner of the Connecticut law firm of Cahill Goetsch & Perry, P.C.. He is a national expert in rail safety, and the author of the Train Law Blog. Mr. Goetsch's clients have prevailed is some of the first decisions under the FRSA, and now he is preparing for the first federal jury trial to be heard under this law.

Submit Your Question to be asked on air during the show or call in to 1-888-874-4888.

Missed last week's episode?? You can listen to the podcast.

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Terrence Blocker worked for the Metro-North Commuter Railroad Company in New Haven, Connecticut, since 2003. He was a laborer in Metro-North's maintenance shop (called the MU Shop), and a union member.

On July 27, 2008, Blocker was operating a shuttle wagon. It tipped over and fell into a repair pit. Blocker suffered a small cut on his forehead, and he had stiff muscles starting the following day. On July 30, 2008, Blocker saw a doctor who discovered he had sprained his spine and right shoulder. When Blocker later asked for a copy of the company's report of the accident, he discovered there was none. On August 25, 2008, Blocker's doctor recommended physical therapy. That same day, Metro North management decided to conduct a trial to determine if Blocker was responsible for the accident. Blocker stopped going to his physical therapy because he thought the company would not pay for it. Metro North found Blocker guilty of unsafe operation of the shuttle wagon and imposed a 10-day suspension on him.  Blocker promptly complained to OSHA that this suspension was unlawful retaliation in violation of the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109. Management then gave notice that they would conduct another trial against Blocker, accusing him of providing false information to OSHA. Blocker filed an amended complaint with OSHA alleging that the new trial was unlawful retaliation for filing his original OSHA complaint. Management then amended its notice for the hearing to claim that he was guilty of failing to report his injury and submit his medical substantiation. After the trial, management imposed a 30-day suspension on Blocker, for the offense of filing "a false statement in your complaint to [OSHA] claiming violations of the [FRSA]." Management explained to OSHA that this was a typographical error.

OSHA has now ordered Metro North to pay Blocker $75,000 in punitive damages, and to pay Blocker's attorney, Charlie Goetsch. "Taking repeated disciplinary action against an employee who exercised his legal right to report an on-the-job injury and voiced a complaint about retaliatory treatment by his employer is unconscionable," said Marthe Kent, OSHA's New England regional administrator in a press release. "Such treatment instills a culture of silence in which hazardous conditions are masked because employees will be fearful of reporting them."

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Yesterday, the National Whistleblowers Center (NWC) submitted comments to the Department of Labor (DOL) on three sets of regulations for whistleblower cases. DOL had issued the interim regulations on August 31, 2010. One set of regulations, 29 CFR Part 1982, covers whistleblower cases from both the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA), 6 U.S.C. § 1142. Another new set, 29 CFR Part 1983, covers claims under the Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. § 2087. The third set amends the regulations at 29 CFR Part 1978 that apply to truck driver cases under the Surface Transportation Assistance Act (STAA). NWC's comments on these regulations are substantially the same for all three sets. I raised concerns about (1) requiring 15-days notice before filing claims in U.S. District Court when the statutes do not contain any such limitation on going to federal court; (2) lack of specificity in allowing staff to redact information from employer submissions to comply with "other confidentiality laws;" and (3) adding a difficult procedural hurdle for parties by requiring that all issues to be raised to the Administrative Review Board (ARB) be stated in the petition for review that must be filed within 10 days of issuance of the decision of the Administrative Law Judge (ALJ). On this last point, I am concerned that the ARB will use this procedural hurdle to avoid deciding cases on the merits. It will also discourage attorneys from taking whistleblower cases to the DOL and make it harder for us to find attorneys for all the whistleblowers that contact us for help. You can read my comments by following these links: CPSIA, STAA, NTSSA and FRSA. You can explore the public dockets containing other comments by following these links: CPSIA, STAA, NTSSA and FRSA.

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In June 2009, a Metrorail accident near Ft. Totten in Washington, DC, killed nine people. The National Transportation Safety Board (NTSB) issued a report this summer that found Metro lacked a "safety culture." Now an internal Metro report finds the same problem. Katherine Shaver wrote about the report for the Washington Post. While 60 percent of Metro employees witnessed a safety concern, 30 percent of them did not report it. Shaver says that fear of retaliation is cited as a reason.  Her article fails to mention the two federal laws that grant public transit employees legal protection when they raise safety concerns. These laws are the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA). Both are part of Public Law 110-53, the 9/11 Commission Act passed in 2007. See § 1413 (NTSSA) and § 1521 (FRSA). I have written about these laws before here, here, here and here. Later this month, I have an appointment to speak to officers of Local 689 of the Amalgamated Transit Union (ATU) about these legal protections. I feel like Glinda, the Good Witch of the North (from the Wizard of Oz), telling transit workers that they have had these legal protections for years.  They just need someone to tell them about these protections so they can feel more confident that they are protected from retaliation. If it won't be the Metro Board, Metro management, or the Washington Post, then it will be me.

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Today the Department of Labor has issued new regulations for whistleblower claims under four new laws. These laws include two laws included in the 2007 law that adopted recommendations of the 9/11 Commission, the National Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA). This law also updated provisions of the Surface Transportation Assistance Act (STAA) which protects truck drivers, and DOL has announced new interim regulations on STAA whistleblower cases. Finally, DOL has issued new regulations for whistleblower claims under the 2008 Consumer Product Safety Improvement Act. The Occupational Safety and Health Administration (OSHA) issued the regulations, and will receive public comments until November 1, 2010. You can access all the rules through the Federal Register.

I have complained before to OSHA about rules that add hurdles for whistleblowers, and can derail a case away from being decided on the merits.  The one that irks me the most is the rule in 29 CFR 24.110 that requires parties appealing an judge's decision to the Administrative Review Board (ARB) to list in the petition for review every issue they will raise on appeal. This listing of issues is not required in appeals from federal court. The time to list all the issues is when the lawyer has finished reviewing the record to write the brief. If the ARB wants to assess from the petition whether the case is worthy of further review, then it is sufficient to require that an appellant list enough issues to justify review.  There is no reason to add that any issue omitted from the petition is waived -- other than to create a hurdle that can justify dismissing some issues or cases on grounds other than the merits.  That is a purpose contrary to the remedial purpose of protecting employees who put the public interest ahead of their own job security. Sadly, the new rules expand the requirement for detailed petitions for review, and the waiver of issues not raised.  See, for example, 29 CFR 1983.110(a) for CPSIA claims. Perhaps more significant, the new rules prevent the ARB from reversing an ALJ's factual findings whenever the ARB finds "substantial evidence" to support the ALJ's position. The Secretary of Labor used to conduct de novo review of the whole record, which provided better assurance that the DOL's final decisions reflected the remedial purpose of protecting whistleblowers.  The only reason for the narrower standard of review is to make the ARB's job easier. I think protecting whistleblowers is more important. I am also sad to see that the new rules require giving the DOL 15 days notice before a whistleblower files a lawsuit in U.S. District Court. The purpose of this rule is to give DOL a chance to issue a final order before the case goes to District Court.  That is contrary to the legislative purpose of giving whistleblowers a fresh bite at the apple if DOL has taken too long to decide a case.  While it is helpful to have rules for the many FRSA, NTSSA, STAA and CPSIA cases in the pipeline, these rules fall short of the change I was hoping for. The full OSHA statement about the interim rules follows in the continuation of this post.

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One of the problems of our current patchwork approach to whistleblower protection is that much of the public is unaware of the protections that do exist in the law today. A case in point would be yesterday's story in the Washington Examiner. In a story called, "Metro strengthening protections for 'whistleblowers,'" writer Markham Heid reports on an action by the Board of Directors of our local transit system. "The measures include the implementation of federal laws that provide protection for whistleblowers . . .," the article says. I would say that there is nothing the Metro board needs to do to "implement" the federal protection for whistleblowers.  It already exists. I wrote here, here and here before about the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA). Both are part of Public Law 110-53, the 9/11 Commission Act passed in 2007. See § 1413 (NTSSA) and § 1521 (FRSA). The key points for current Metro employees is that federal law now protects them when they raise safety concerns to anyone -- their supervisors, federal overseers, their members of Congress, or the media. If they experience retaliation, they have 180 days to file a written complaint with OSHA. They will have access to the same procedures that have protected environmental and nuclear whistleblowers for 40 years. Metro employees are welcome to come here to the National Whistleblowers Center if they want legal advice about raising safety issues, or raising claims of retaliation. Heid's article reports that the Metro board is establishing its own Whistleblower Hearing Panel. Myself, I would rather see whistleblowers pursue the Department of Labor process, starting with the OSHA complaint, where they can own a cause of action and receive a due process hearing that is not controlled by Metro management. Is a management panel really going to award compensatory damages and attorney fees against itself? Management may be lauded for its recognition that whistleblowers are their friends in the cause of safety. Metro and the media can both do a better job of informing employees of the actual remedies that already exist.

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One of the outcomes of the 9/11 Commission was that Congress passed two whistleblower protection laws for railroad and public transit employees in 2008. These are the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA). Both are part of Public Law 110-53, see § 1413 (NTSSA) and § 1521 (FRSA). Together, these laws assure the traveling public that if any of the carrier's employees see a safety or security concern, they can raise that concern knowing that they have legal protection against retaliation, . . . unless they are traveling by ferry.

This week, the Occupational Safety and Health Administration (OSHA) issued a determination of an FRSA violation.  OSHA's New York office did so in the most common of circumstances.  It has expunged a suspension for an employee of the Port Authority Trans-Hudson Corp. (the so-called PATH trains between New Jersey and Manhattan). According to OSHA's press release, the employee, under a doctor's order, was absent from work while recovering from an injury. PATH management accused the employee of absenteeism, and issued a suspension. The worker filed a whistleblower complaint with OSHA and OSHA has now concluded that this simple act of following a doctor's orders is a protected safety-related act.

"Railroad employees have the statutory right to report work-related injuries and to follow the orders or treatment plan of a treating physician," said Robert Kulick, OSHA's regional administrator in New York. "Railroads who retaliate against employees for exercising their rights will be held accountable."

OSHA has ordered PATH to take corrective action, including expunging disciplinary actions and references to them from various records as well as compensating the worker for lost wages resulting from the suspension. The railroad also must post and provide its employees with information on their FRSA whistleblower rights. Either or both parties can object and request a hearing before an Administrative Law Judge.

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