In recent years, Congress has expanded the enforcement authority of the Occupational Safety and Health Administration (OSHA) to cover the "whistleblower" provisions of 17 federal statutes, including the Federal Rail Safety Act (FRSA) and the National Transit Systems Security Act (NTSSA). OSHA's authority may soon be further enhanced by the Protecting America's Workers Act, which seeks to create new whistleblower protections and increase the fines and penalties applicable to certain violators. As OSHA's authority continues to expand, rail carriers subject to the FRSA and NTSSA should review their obligations in order to reduce the risk of liability.

OSHA Enforces Whistleblower Protections For Rail Carrier Employees


On August 3, 2007, The Implementing Recommendations of the 9/11 Commission Act (9/11 Act) amended the FRSA to expand whistleblower protections available to rail carrier employees. Significantly, the 9/11 Act transferred responsibility for the enforcement of the FRSA whistleblower protections from the National Railroad Adjustment Board to OSHA. The 9/11 Act also implemented the NTSSA, through which OSHA is charged with enforcing similar protections for employees of public transportation agencies, their contractors and subcontractors.   

Applicable Whistleblower Protections

The NTSSA and FRSA prohibit covered employers from discharging, demoting, suspending, reprimanding or otherwise discriminating or retaliating against employees due, in whole or in part, to their involvement or perceived involvement in certain protected conduct. Under both statutes, such protected conduct includes:

  • Reporting an alleged violation of any federal law, rule, or regulation relating to public transportation safety or security, or fraud, waste, or abuse of federal grants or other public funds intended to be used for public transportation or railroad safety or security;
  • Reporting hazardous safety or security conditions;
  • Refusing to violate or assist in the violation of any federal law, rule, or regulation relating to public transportation or railroad safety or security;
  • Cooperating with authorities in the event of a safety or security investigation or providing information to authorities regarding any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with public or railroad transportation; and
  • Refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties (under imminently dangerous circumstances).
In addition to the conduct described above, the FRSA extends whistleblower protections to rail carrier employees for accurately reporting their hours on duty and for reporting work-related personal injuries or illnesses. In 2008, Congress further amended the FRSA to include whistleblower protections relating to "prompt medical attention." These protections prohibit railroad carriers from disciplining or threatening to discipline an employee for requesting medical or first aid treatment or for following orders or a treatment plan of a treating physician.  

Enforcement

Employees who believe that they have been discriminated or retaliated against in violation of the NTSSA or FRSA may file a complaint with OSHA within 180 days of the alleged adverse action. Upon receipt of a timely complaint, OSHA will notify the employer and, in lieu of successful conciliation, conduct an investigation.

If OSHA determines there has been a violation, it will issue a determination letter and order the employer to provide necessary relief, which may include back pay, reinstatement, compensatory damages, fees and punitive damages up to $250,000. Conversely, if OSHA finds that an employee's complaint is frivolous, it may fine the employee up to $1,000 in reasonable attorneys fees. If a final agency order is not issued within 210 days, the employee may file a claim in the appropriate federal district court.

After OSHA issues its findings and order, either party may request an evidentiary hearing before an administrative law judge, whose decision and order may be appealed to the Department of Labor's Administrative Review Board. Any party aggrieved by a final agency order may appeal to the appropriate federal circuit court of appeals for review.    

Election of Remedies, Preemption and Retention of Rights

The NTSSA and FRSA have separate election of remedies, "no preemption" and retention of rights provisions. The election of remedies provision states that an employee may not seek protection under both the statute and another provision of law for the same allegedly unlawful act. Meanwhile, the "no preemption" and "rights retained by employee" provisions state that the protections under the statute do not preempt or diminish any other federal or state safeguards against discrimination, or any other rights, privileges or remedies available under a collective bargaining agreement or federal or state law. The interplay among these provisions and its jurisdictional effect on whistleblower claims has already been litigated in administrative and federal forums with varying results.

In light of the developing nature of whistleblower protection law and new changes potentially on the horizon, rail carriers should take appropriate steps to ensure compliance with all relevant whistleblower protections and familiarity with OSHA's process for the administration of such claims.