OSHA issued final regulations implementing the whistleblower protection provisions of the National Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA). The regulations are available here.

FRSA Whistleblower Protection

The FRSA prohibits an employer from retaliating against a railroad employee who provides information to a regulatory or law enforcement agency, a member of Congress, or any person with supervisory authority over the employee about a reasonably perceived violation of federal law relating to railroad safety or security. In addition, the FRSA protects an employee who:

• refuses to violate a federal law, rule or regulation related to railroad safety or security;

• files a complaint under FRSA;

• notifies or attempts to notify the railroad carrier or Department of Transportation (“DOT”) of a work related personal injury or illness of an employee;

• cooperates with safety or security investigations conducted by the DOT, Department of Homeland Security (“DHS”), or National Transportation Safety Board (“NTSB”);

• furnishes information to the DOT, DHS, NTSB, or any federal, state or local law enforcement agency regarding an accident resulting in death or injury to a person in connection with railroad transportation; or

• accurately reports hours on duty.

NTSSA Whistleblower Protection

The NTSSA prohibits public transportation agencies, including contractors and subcontractors, from discharging, demoting, suspending, reprimanding, or in any other way discriminating against an employee because the employee:

• reports a hazardous safety or security condition;

• refuses to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties;

• refuses to authorize the use of any safety or security related equipment, track, or structures under certain hazardous conditions;

• provides information or assists in an investigation regarding conduct which the employee reasonably believes constitutes a violation of federal law relating to public transportation safety or security;

• is perceived by the employer to have engaged in the protected activity;

• refuses to violate or assist in the violation of a federal law;

• files an employee protection complaint under NTSSA;

• cooperates with a safety or security investigation conducted by the DOT, DHS, or NTSB; or

• furnishes information to the DOT, DHS, NTSB or any federal, state, or local law enforcement agency regarding an accident resulting in death or injury to a person in connection with public transportation.

OSHA Implementing Regulations

The following are some key aspects of the implementing regulations:

• OSHA clarified that the FRSA protects a disclosure concerning a railroad carrier denying, delaying, or interfering with the medical or first aid treatment of an employee who is injured during the course of employment.

• Consistent with the ARB’s decision in Koger v. Norfolk Southern Railway Co. and Mercier v. Union Pacific Railroad, ARB Nos. 09-101 and 09-121, 2011 WL 4889278 (ARB Sept. 29, 2011), the final rule clarifies that the FRSA’s election of remedies provision permits a whistleblower claim to proceed notwithstanding the employee’s pursuit of a grievance or arbitration under a collective bargaining agreement.

• The 180-day statute of limitations commences when the retaliatory decision has been both made and communicated to the complainant, e., when the employee is aware or reasonably should be aware of the employer’s decision to take an adverse action.

• OSHA permits complaints to be made orally or in writing.

• A complaint of retaliation filed with OSHA under NTSSA or FRSA need not conform to the Iqbal/Twombly pleading standard. An OSHA complaint “simply alerts the agency to the existence of the alleged retaliation and the complainant’s desire that the agency investigate the complaint.”

• OSHA will request that the parties provide each other with copies of their submissions to OSHA during the investigation and that, if a party does not provide such copies, OSHA will do so at a time permitting the other party an opportunity to respond to those submissions.

FRSA Authorizes Punitive Damages

The FRSA has proven to be very effective in protecting whistleblowers in the railroad industry in part because it authorizes an award of punitive damages.