Find more information about these topics by following the links below:
If you are injured or sick and cannot work at your railroad job, you have the right to apply for temporary RRB disability or sickness benefits. See www.rrb.gov/forms/opa/ub9/ub9.asp#introductionRRB and the Sickness Benefits Handbook.
These benefits are paid on a bi-weekly basis. In order to receive temporary disability benefits, you must:
Be unable to work due to injury, sickness, pregnancy, or child birth; and
Not be receiving wages or pay from your employer railroad (however, payments from your own personal insurance coverage do not prevent you from receiving RRB benefits).
Click here to print out the application form or obtain an application form from your attorney, labor representative, railroad benefits department, or RRB office, and take the following steps:
Remember, any RRB benefits you receive constitute a lien against any settlement or judgment you obtain against your employer railroad for an on-the-job injury or against any third party responsible for your injury.
You can contact the RRB at 1-800-808-0772 or www.rrb.gov or call us at 1-800-654-RAIL if you have any questions.
If you are permanently disabled due to an injury or sickness, you may be entitled to receive a RRB disability pension. See the RRB information here. There are two kinds of long-term disability pensions-total and occupational.
You may be entitled to an RRB total disability pension if two conditions exist:
A RRB total disability pension is based upon the same standards used by the Social Security Administration.
You can contact the RRB at 1-800-808-0772 or www.rrb.gov or call our railroad law firm at 1-800-654-RAIL if you have any questions.
You may be entitled to an RRB occupational disability pension if the following conditions exist:
There is a five-month waiting period for the payment of disability annuity benefits that begins the month after the onset of your disability. However, you can and should file your application as soon as your doctor concludes you are permanently disabled from your railroad job.
The RRB will pay your disability pension benefits retroactively, based upon the commencement of your disability period. Attempts to return to work after the commencement of your disability will affect how far back any retroactive benefits go.
Keep in mind that if you are on a RRB disability pension you are restricted from earning more than $700 per month (or $8,400 per year) in any employment or net self-employment. However, that earnings restriction is removed when you reach your full retirement age.
It is best to consult with your attorney and/or your local RRB office before attempting to file a disability pension application.
What Is the FRSA?The Federal Rail Safety Act, 49 U.S.C. Section 20109, is a powerful new law that protects railroad workers who engage in certain “protected activity.” FRSA prohibits railroads from firing, laying off, demoting, disciplining, reprimanding, intimidating, denying promotion or benefits, or in any other way retaliating or discriminating against any employee who engages in certain “protected activity.”
What Is Protected Activity Under the FRSA?
All railroad employees (and employees of railroad contractors or subcontractors) engage in “protected activity” when they:
As far as reporting or furnishing information to their railroad employer is concerned, employees receive protection when they report or furnish that information to any railroad person who has supervisory authority over the employee or who has the authority to investigate, discover, or terminate the matter or conduct involved.
A railroad may not discipline or threaten to discipline an employee for following the orders or treatment plan of a treating physician. Also, a railroad may not deny, delay, or interfere with the initial medical treatment of a work related injury.
The FRSA is a “make whole” statute. When OSHA’s Whistleblower Office finds a railroad has violated the FRSA, it has the power to order any and all remedies necessary to make the employee whole, including:
A railroad employee must file a FRSA complaint with the appropriate United States Department of Labor’s Regional OSHA Whistleblower Office within 180 days of when the employee knew or should have known of the adverse action taken by a railroad. There may be more than one adverse action involved. For example, OSHA considers the first notice of a disciplinary charge to be an adverse action that starts its own 180 window. The subsequent holding of a disciplinary trial and the imposition of formal discipline will start their own 180 day windows.
After the Complaint is filed, OSHA’s Whistleblower Office assigns an Investigator to the file, who conducts an investigation by: obtaining a written response from the railroad; interviewing the complainant, co-workers, managers, and any other relevant witnesses; and collecting all relevant documentation. OSHA then issues a written decision finding a violation or not. If there is a violation, OSHA orders all remedies necessary to make the employee whole.
After OSHA issues its Merit Finding, a railroad has 30 days to either comply with the Order or to file an objection to the Order, in which case it proceeds to a de novo evidentiary hearing before a federal administrative law judge (ALJ). Any appeal from a decision of an ALJ goes to the federal Administrative Review Board (ARB) in Washington, D.C. However, if OSHA has not issued a final decision within 210 days (and a decision is not final if it is still pending before OSHA, an ALJ, or the ARB), the FRSA allows the complainant the option of filing his or her FRSA complaint in federal district court for a jury trial on all the issues, including punitive damages. Any appeal from a district court jury verdict or ARB decision is to a United States Circuit Court of Appeals, and then to the United States Supreme Court if certiorari is granted.
FRSA Four Elements of Proof
(1) the complainant employee engaged in activity protected by the FRSA (e.g., reported an injury or a hazardous safety condition);
(2) the railroad knew or suspected the employee engaged in the activity;
(3) the railroad subjected the employee to some form of adverse action (e.g., discipline or discriminatory treatment); and
(4) the employee’s protected activity was a contributing factor to the adverse action.
A “contributing factor” is a factor which, alone or in connection with other factors, affected in any way the railroad’s adverse action. A protected activity was a contributing factor if the railroad’s adverse action was based “in whole or in part” on the protected activity–that is, if the protected activity affected the railroad’s action to any extent.
A railroad employee does not have to prove the existence of a retaliatory motive on the part of the manager or supervisor who took the adverse action. Regardless of a manager’s motives, adverse actions simply cannot be based in whole or in part on the protected activity of an employee.
A railroad can have a valid reason for firing an employee and still violate the FRSA if the discipline also is based in part on the employee’s protected activity of raising a safety concern, reporting an injury, or following a treating doctor’s orders. In the words of OSHA:
In proving that protected activity [such as reporting an injury, raising a safety concern, or following a treating doctor’s orders] was a contributing factor in the adverse action, an employee need not necessarily prove that the railroad’s articulated reason was a pretext in order to prevail, because an employee alternatively can prevail by showing that the railroad’s reason, while true, is only one of the reasons for its conduct, and that another reason was the employee’s protected activity.
OSHA’s Interim Final Rule regarding 29 CFR 1982.104, published at 75 Federal Register 53521-53533 (8/31/10). Thus, a railroad manager can have a valid reason for taking disciplinary action against an employee and still be in violation of the FRSA as long as the employee shows that another reason was his or her protected activity of reporting an injury, raising a safety concern, or following a treating doctor’s orders.
Once an employee established that his or her protected activity was a contributing factor in the adverse action, the only way a railroad can escape liability under the FRSA is to prove by “clear and convincing evidence” (which is a higher standard of proof than a preponderance of the evidence) that it would have taken the same action in the absence of the protected activity.
For a very general description of the FRSA, see OSHA’s FRSA Fact Sheet http://www.osha.gov/Publications/OSHA-factsheet-whistleblower-railroad.pdf
For more detailed information and resources regarding the FRSA, see the FRSA Library
If you are a railroad worker who has been injured on the job, you need a lawyer who understands the complicated FELA claims process. Find out how we can help you receive the compensation you deserve.
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