In dangerous industries like nuclear power generation, airlines and railroads, Congress has recognized that public safety is at risk if employees don't report safety problems, including their own ill health.
But managers in these industries have objectives that conflict with this philosophy. They are often encouraged to reduce the number of reported health and safety problems. The numbers can affect their compensation or advancement. This atmosphere creates pressure on workers to report fewer injuries, to work while sick, and keep mum about equipment safety issues, according to congressional testimony that prompted whistleblower laws for these fields.
Since 2007, when the Federal Rail Safety Act (FRSA) was enacted, New Haven's Charles Goetsch has wanted to see it work well. He's a veteran railroad employment lawyer, and has created the Trainlaw.com website and blog. It has a national following of about 500, and has turned railroad whistleblower law into a national practice for Goetsch, of Cahill, Goetsch & Perry.
As a result, he has pioneered some of the earliest FRSA whistleblower act trials. On Feb. 19, he won the first appellate level FRSA matter, in the U.S. Court of Appeals for the Third Circuit. In that case, Goetsch's client, a conductor-flagman in Newark, N.J., witnessed an on-the-job death. After he sought sick time for emotional injuries, he was laid off.
So Anthony Araujo filed an Occupational Safety and Health Administration complaint, and was awarded $569,587 at the administrative level. However, in district court, Araujo lost on summary judgment. But on appeal, a Third Circuit panel enunciated a highly worker-friendly, two-part test for railroad workplace discrimination. Goetsch recently discussed the new landmark with Senior Writer Thomas B. Scheffey.
LAW TRIBUNE: What's the basic problem behind this case?
CHARLES GOETSCH: In the railroad industry, employees who report injuries or safety hazards or follow a doctor's orders not to work because they're not in a fit condition to do so, routinely get retaliated against, harassed, disciplined and fired. Congress confirmed this, and with passage in 2007 of the Federal Rail Safety Act, for the first time in history, railroad workers got protection from the retaliatory culture of rail management.
LAW TRIBUNE: Why encourage whistle-blowing?
GOETSCH: The railroad workers are on the front lines as the eyes and ears of safety for the railroad administration. Injury reports were being repressed, and this was totally unacceptable to the Federal Railway Administration and to Congress.
LAW TRIBUNE: And people were intimidated into silence?