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9th Circuit upholds rights of railroad whistleblowers

Whistleblowers who work for railroads in Connecticut and around the country may be interested in a ruling that was handed down by the U.S. Court of Appeals for the 9th Circuit. An employee had filed a lawsuit against his employer, BNSF Railway, under the Federal Railroad Safety Act's protection for whistleblowers.

The lawsuit dealt with two incidents in which the employee "fouled" the tracks. "Fouling" refers to a worker approaching the tracks without proper authorization. The first time, the employee had not been informed by his supervisor that trains would be passing where he was working, and he was nearly hit by a train when he moved closer to the tracks to see if one part of the repair equipment was working properly. The employee reported to BNSF that he was diagnosed with PTSD. After making his report, the employee was the only one who was near the tracks that day who was disciplined for not following safety rules. The man later violated a safety rule again and was fired.

The appellate court disagreed with some of the results of the original trial. First, the panel said that BNSF was liable for retaliation even if it had an "honest belief" that safety rules were violated. Next, it said the employee did not have to show proof of intent for retaliation. The reasoning behind this standard is that it is more difficult for employees to access needed evidence.

Railroad workers who believe they have taken an action that is covered by whistleblower protection laws may want to consult an attorney. The action could range from informing the employer about an injury, as in this case, to reporting safety violations or fraud. In some cases, workers may not know the scope of their rights. There may be a time limit in which a worker must file a claim. An attorney may be able to assist such an employee in taking the next steps.

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