This article was originally published in the Summer 2013 Commercial Transportation Litigation Committee Newsletter.

Employee Whistleblower Protection laws at the federal level are quickly and, perhaps alarmingly for transportation employers, becoming one of the largest growth areas in transportation litigation. A number of federal laws currently provide protection to employees in the transportation industry.[1] Nowhere, however, do these federal whistleblower protection laws intersect more closely with each other than in the case of employees working in the intermodal transportation industry.

This article will address two such laws. The Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109, protects employees of railroads and their contractors who report safety violations or personal injuries. The Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105, protects truck drivers and other employees who refuse to violate regulations governing the safety of commercial motor vehicles. These two statutes overlap in several ways, exposing transportation industry employers beyond simply railroads and trucking companies to liability. This can include, for example, terminal operators in intermodal facilities, as well as companies which contract with railroads to provide mechanical repair services to railroad and trucking equipment within such facilities.

While the extent to which liability can co-exist under the two statutes is not yet clear, transportation defense attorneys who have protected clients by educating them regarding the impact of one of the statutes should recognize that there is another significant area in which companies working in the intermodal transportation industry may be implicated.

THE FEDERAL RAILROAD SAFETY ACT
The FRSA Whistleblower provision prohibits a railroad carrier, its officers or employees, or its contractors or subcontractors, from discharging, demoting, suspending, reprimanding or discriminating against an employee who has engaged in specified protected activity. 49 U.S.C. § 20109(a). Protected conduct includes:

  1. providing information or assisting in an investigation[2] regarding conduct which the employee reasonably believes constitutes a violation of the law, or relates to railroad safety or security, or gross fraud, waste or abuse of public funds;
  2. refusing to violate a law relating to railroad safety or security
  3. filing a complaint or testifying in a proceeding relating to enforcement of the FRSA, the safe transportation of hazardous materials, or the safe transportation and inspection of food;
  4. notifying the carrier or the Secretary of Transportation of a work-related personal injury or illness;
  5. cooperating with a safety or security investigation[3];
  6. furnishing information[4] relating to any accident or incident resulting in injury, death or damage to property occurring in connection with railroad transportation;
  7. accurately reporting hours on duty.

Because the protections referred to above extend to the employees of railroad contractors and subcontractors, these provisions potentially implicate any railroad contractor doing business at an intermodal facility, as well as any trucking company that contracts with railroads for the transportation of containers and which transports containers to and from intermodal yards.[5]

The FRSA also prohibits a rail carrier “or person covered under this section” from failing to provide medical care to an injured employee when requested, and from interfering with an employee’s medical treatment related to an on-duty injury. 49 U.S.C. § 20109(c). No case has been found which interprets who is a “person covered under this section.” The simplest application of this language would be to apply it only to an officer or employee of a rail carrier, as the FRSA creates individual liability for those who violate its provisions. However, it can also be argued that this language extends liability to a contractor or subcontractor of the railroad.

In construing statutory language, courts must presume that the statute says what it means and means what it says.[6] Applying this logic, a “person covered under this section” should include a contractor or subcontractor of the railroad, as the statute specifically states that its coverage extends to those entities. There does not seem to be any good reason, therefore, to exclude them.

The current anti-retaliation provisions of the FRSA were enacted in 2007, and enforcement of these provisions was transferred to OSHA at that time. Previously, enforcement power had existed in the National Railroad Adjustment Board or a board of adjustment created under the Railway Labor Act, 45 U.S.C. § 151 (1996).[7] Because of the recency of these provisions, there are few court cases which interpret the statute or provide guidance to employers or their attorneys regarding the scope of its provisions. There are rulings of arbitrators following administrative hearings held for claims made under the Act, but these primarily assess whether retaliation has been shown under the facts of a particular case, rather than interpret the scope of the FRSA in this area.

Because the FRSA is remedial in nature, however, it is likely that, consistent with the decisions of a number of federal courts, it will be given a broad construction and a liberal interpretation in order to further the remedial, beneficial, and humanitarian purposes behind the Act. See, e.g., Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987); Consolidated Rail Corp. v. Gottschall, 512 U.S. 532, 543, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). In the absence of case law interpreting the FRSA, courts can “look to case law applying provisions of other federal whistleblower statutes for guidance.” Collins v. Beazer Homes USA, Inc., 334 F.Supp.2d 1365, 1374 (N.D. Ga. 2004).

THE SURFACE TRANSPORTATION ASSISTANCE ACT
The STAA provides protection to transportation industry employees, defined to include:

  1. a driver of a commercial motor vehicle (including an independent contractor while in the course of personally operating a commercial motor vehicle);
  2. a mechanic;
  3. a freight handler; or,
  4. any individual other than an employer;
    • who is employed by a commercial motor carrier; and
    • whose employment directly affects commercial motor vehicle safety.[8]

Because the STAA does not specifically provide for an extension of coverage to contractors or subcontractors of commercial motor carriers, railroads cannot apparently have liability under the whistleblower provisions of the Act.[9] By its terms, however, the statute would appear to extend protection to a mechanic employed by a company which provides repair services to commercial motor vehicles in a railroad intermodal yard, or an employee of a terminal services company involved in loading and unloading containers onto and from commercial motor vehicles in such a yard.

Protected conduct under the STAA includes:

  1. Filing a complaint, beginning a proceeding relating to the violation of a commercial motor vehicle  safety or security regulation, standard, or order, or testifying or planning to testify in such a proceeding;
  2. Refusing to operate a vehicle because the operation violates a regulation standard, or order of the United States related to commercial motor vehicle safety, health, or security;
  3. Having a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition;
  4. Accurately reporting hours on duty;
  5. Cooperating or being perceived to cooperate with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board; or
  6. Furnishing or being perceived to furnish information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual, or damage to property occurring in connection with commercial motor vehicle transportation.

Concerning the protected activity set forth in paragraph (a), the complainant need not explicitly state the commercial motor vehicle safety standard that is protected in order for the activity to be considered protected. The Secretary of Labor has stated that so long as the complaint raises safety concerns, the person making the complaint will not be expected to cite standards or rules like a trained lawyer. The statute requires however that the complaint relate to the violation of a commercial motor vehicle safety standard. Other safety concerns which, however legitimate, fail to relate to a violation of a commercial motor vehicle safety standard are not entitled to protection under this section. Notably, a complaint under the STAA relating to a safety violation will be protected even if the complaintis deemed meritless. The employee’s complaint must only be based upon a reasonable belief that a violation is occurring in order for the STAA’s protections to apply.

On the other hand, with regard to the conduct outlined above in paragraph (b), an employee’s subjective opinion will not win protection under the STAA. Rather, the employee must prove that his assessment is correct. Here too, the violation must be of a federal nature, and not merely the employee’s own subjective notion. Moreover, there is no requirement in the statute that the violation must immediately occur. It may occur prospectively.

With regard to the protected conduct set forth in paragraph (c), the standard is only that the employee have a reasonable apprehension of injury of such a nature that a reasonable person, under the same circumstances confronting the employee, would conclude that there is a real danger of accident, injury or serious impairment to health. The STAA does not require that the hazardous condition later be confirmed or even exist. The employee must, however, sufficiently and clearly communicate or attempt to communicate his or her concerns to the employer and be unable to obtain any correction of these concerns.

AN OVERALL VIEW OF THE TWO STATUTES
The FRSA and the STAA share similarities with regard to the conduct they protect, the test which is employed to determine whether the employee should prevail, and most of the remedies awarded if the employee prevails. Both the FRSA and STAA employ the “contributing factor” test. This means that a preponderance of the evidence must indicate only that the protected activity was a contributing factor in the adverse action. Also, both the STAA and the FRSA contain similar remedies should the employee prevail, including reinstatement with the same seniority and benefits; payments of back pay with interest; compensatory damages, including, where appropriate, special damages; expert witness and reasonable attorney’s fees; and punitive damages not to exceed $250,000 in certain cases.

The differences between the FRSA and the STAA begin with what each classifies as protected activity. The STAA does not extend the same protections as the FRSA for notifying the carrier or the Secretary of Transportation of a work-related personal injury or illness. In that regard, employers in the trucking industry and in particular, intermodal terminal operators, may face exposure for injuries of their own employees if that injury or illness occurred while working as a contractor or subcontractor of a railroad carrier.

Further, while the FRSA specifically contains an election of remedies provision barring recovery under the FRSA and another statute, for the same allegedly unlawful act of the railroad carrier, the STAA does not.[10] The possibility of recovering under both the STAA and another whistleblower provision, such as an 11(c) complaint under OSHA, is specifically discussed in 29 CFR 1978.103, paragraph (e). That regulation provides that a “complaint filed under STAA that alleges facts that would also constitute a violation of section 11(c) of the Occupational Safety and Health Act (29 U.S.C. 660(c)), will be deemed to be a complaint under both the STAA and section 11(c). Similarly, a complaint filed under section 11(c) that alleges facts that would also constitute a violation of STAA will be deemed to be a complaint filed under both STAA and section 11(c). Normal procedures and timeliness requirements under the respective statutes and regulations will be followed.” 29 C.F.R. § 1978.103.

An example given by OSHA in the interim final rules, in explaining dual recovery under the STAA and 11(c) of the OSH Act, was that of a freight handler, loading cargo onto a commercial motor vehicle, who may complain about both the overloading of that vehicle (a safety complaint protected by the STAA) and also about an unsafe forklift (a safety complaint covered by the OSH Act). OSHA’s practice would be to investigate whether either or both of these protected activities caused the adverse action. The FRSA does not, on the other hand, contain any provision concerning a dual FRSA and 11(c) action. Given that railroad safety issues have been traditionally enforced by the Federal Railroad Administration rather than OSHA, at least until the delegation of authority to OSHA of enforcement of the whistleblower protections, this is not surprising.

The STAA also differs from the FRSA in that it permits a preliminary order of abatement after a complaint is filed, including reinstatement if the employee has been discharged, if the preliminary investigation finds reasonable cause to believe that the complaint has merit. The FRSA does not contain any such provision.

While it appears that the STAA is in many areas a more generous statute to employees, the FRSA’s protections relating to the reporting of a work-related personal injury or illness provide significant exposure to employers in the trucking industry who are also working for contractors or subcontractors of railroads. If you are a trucking employer who is performing work for a rail carrier pursuant to a contract, your liability exposure will be greater under the FRSA’s whistleblower provisions.[1] The International Safe Container Act, 46 U.S.C. §80507 protects employees involved in international shipping. MAP-21, 49 U.S.C. § 30171 prohibits retaliation against employees of motor vehicle manufacturers, parts suppliers and dealerships. The National Transit Systems Security Act, 6 U.S. C. § 1142, protects transit employees. The Pipeline Safety Improvement Act, 49 U.S.C. § 60129, protects employees who report violations of federal pipeline safety laws. The Seaman’s Protection Act, 46 U.S.C. § 2114, protects employees who report maritime safety laws to the Coast Guard. The Wendell H. Ford Aviation Investment and Reform Act, 49 U.S.C. § 42121 protects employees of air carriers, their contractors and subcontractors who report violations of laws relating to aviation safety.

[2] This investigation must be conducted by a regulatory or law enforcement agency, a member or committee of Congress, a person with supervisory authority over the employee, or a person who has the authority to investigate, discovery or terminate the misconduct.

[3] This investigation must be conducted by the Secretary of Transportation, the Secretary of Homeland Security or the National Transportation Safety Board.

[4] This information must be furnished to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or a regulatory or law enforcement agency.

[5] The FRSA also protects employees who refuse to work because of hazardous safety or security conditions in § 20109(b), but by its terms, that provision is applicable only to railroads and therefore will not be addressed herein.

[6] Santiago v. Metro North, ARB No. 10-147, July 25, 2012, at p. 10.

[7] (See Memorandum of Agreement between the Federal Railroad Administration and the Occupational Safety and Health Administration (July 16, 2012) available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=MOU&p_id=1125.

[8] Employees of the United States, any State, or any political subdivision of a State are expressly excluded from coverage.

[9] The STAA specifically sets forth definitions as to who is contemplated as an employer and an employee under the Act. “Employee” means a driver of a commercial motor vehicle (including an independent contractor when personally operating a commercial motor vehicle), a mechanic, a freight handler, or an individual not an employer, who directly affects commercial motor vehicle safety in the course of employment by a commercial motor carrier. “Employer” means a person engaged in a business affecting commerce that owns or leases a commercial motor vehicle in connection with that business, or assigns an employee to operate the vehicle in commerce. 49 U.S.C.A. § 31101.

[10] “An employee may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier.” 49 U.S.C. 20109 (f).

This article was originally published in the Summer 2013 Commercial Transportation Litigation Committee Newsletter.