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Federal Rail Safety Act (FRSA), 49 U.S.C. Section 20109, as
amended by Section 1521 of the Implementing Recommendations
of the 9/11 Commission Act of 2007, Pub. L. No. 110-53
(To be codified at 49 U.S. C. 20109)
SEC. 1521. RAILROAD EMPLOYEE
PROTECTIONS.
Section 20109 of title 49, United States Code, is amended to
read:
SEC. 20109. EMPLOYEE PROTECTIONS
(a) IN GENERAL. - A railroad carrier engaged in interstate or
foreign commerce, a contractor or a subcontractor of such a
railroad carrier, or an officer or employee of such a railroad
carrier, may not discharge, demote, suspend, reprimand, or in
any other way discriminate against an employee if such
discrimination is due, in whole or in part, to the
employee’s lawful, good faith act done, or perceived by
the employer to have been done or about to be done -
(1) to provide information, directly
cause information to be provided, or otherwise directly
assist in any investigation regarding any conduct which the
employee reasonably believes constitutes a violation of any
Federal law, rule, or regulation relating to railroad safety
or security, or gross fraud, waste, or abuse of Federal
grants or other public funds intended to be used for railroad
safety or security, if the information or assistance is
provided to or an investigation stemming from the provided
information is conducted by -
(A) a Federal, State, or local
regulatory or law enforcement agency (including an office
of the Inspector General under the Inspector General Act
of 1978 (5 U.S.C. App.; Public Law 95–452);
(B) any Member of Congress, any committee of Congress, or
the Government Accountability Office; or
(C) a person with supervisory authority over the employee
or such other person who has the authority to investigate,
discover, or terminate the misconduct;
(2) to refuse to violate or assist in
the violation of any Federal law, rule, or regulation
relating to railroad safety or security;
(3) to file a complaint, or directly cause to be brought a
proceeding related to the enforcement of this part or, as
applicable to railroad safety or security, chapter 51 or 57
of this title, or to testify in that proceeding;
(4) to notify, or attempt to notify, the railroad carrier or
the Secretary of Transportation of a work-related personal
injury or work-related illness of an employee;
(5) to cooperate with a safety or security investigation by
the Secretary of Transportation, the Secretary of Homeland
Security, or the National Transportation Safety Board;
(6) 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 railroad transportation; or
(7) to accurately report hours on duty pursuant to chapter
211.
(b) HAZARDOUS SAFETY OR SECURITY
CONDITIONS. - (1) A railroad carrier engaged in interstate or
foreign commerce, or an officer or employee of such a railroad
carrier, shall not discharge, demote, suspend, reprimand, or in
any other way discriminate against an employee for -
(A) reporting, in good faith, a
hazardous safety or security condition;
(B) refusing to work when confronted by a hazardous safety or
security condition related to the performance of the
employee’s duties, if the conditions described in
paragraph (2) exist; or
(C) refusing to authorize the use of any safety-related
equipment, track, or structures, if the employee is
responsible for the inspection or repair of the equipment,
track, or structures, when the employee believes that the
equipment, track, or structures are in a hazardous safety or
security condition, if the conditions described in paragraph
(2) exist.
(2) A refusal is protected under paragraph (1)(B) and (C) if
-
(A) the refusal is made in good
faith and no reasonable alternative to the refusal is
available to the employee;
(B) a reasonable individual in the circumstances then
confronting the employee would conclude that -
(i) the hazardous condition
presents an imminent danger of death or serious injury;
and
(ii) the urgency of the situation does not allow
sufficient time to eliminate the danger without such
refusal; and
(C) the employee, where possible,
has notified the railroad carrier of the existence of the
hazardous condition and the intention not to perform
further work, or not to authorize the use of the hazardous
equipment, track, or structures, unless the condition is
corrected immediately or the equipment, track, or
structures are repaired properly or replaced.
(3) In this subsection, only paragraph
(1)(A) shall apply to security personnel employed by a
railroad carrier to protect individuals and property
transported by railroad.
(c) ENFORCEMENT ACTION. -
(1) IN GENERAL. - An employee who
alleges discharge, discipline, or other discrimination in
violation of subsection (a) or (b) of this section, may seek
relief in accordance with the provisions of this section,
with any petition or other request for relief under this
section to be initiated by filing a complaint with the
Secretary of Labor.
(2) PROCEDURE. -
(A) IN GENERAL. - Any action under
paragraph (1) shall be governed under the rules and
procedures set forth in section 42121(b),
including:
(i) BURDENS OF PROOF. - Any
action brought under (c)(1) shall be governed by the
legal burdens of proof set forth in section
42121(b).
(ii) STATUTE OF LIMITATIONS.—An action under
paragraph (1) shall be commenced not later than 180
days after the date on which the alleged violation of
subsection (a) or (b) of this section occurs.
(iii) CIVIL ACTIONS TO ENFORCE.—If a person fails
to comply with an order issued by the Secretary of
Labor pursuant to the procedures in section 42121(b),
the Secretary of Labor may bring a civil action to
enforce the order in the district court of the United
States for the judicial district in which the violation
occurred, as set forth in 42121.
(B) EXCEPTION. - Notification made
under section 42121(b)(1) shall be made to the person
named in the complaint and the person’s
employer.
(3) DE NOVO REVIEW. - With respect to
a complaint under paragraph (1), if the Secretary of Labor
has not issued a final decision within 210 days after the
filing of the complaint and if the delay is not due to the
bad faith of the employee, the employee may bring an original
action at law or equity for de novo review in the appropriate
district court of the United States, which shall have
jurisdiction over such an action without regard to the amount
in controversy, and which action shall, at the request of
either party to such action, be tried by the court with a
jury.
(4) APPEALS. - Any person adversely affected or aggrieved by
an order issued pursuant to the procedures in section
42121(b), may obtain review of the order in the United States
court of appeals for the circuit in which the violation, with
respect to which the order was issued, allegedly occurred or
the circuit in which the complainant resided on the date of
such violation. The petition for review must be filed not
later than 60 days after the date of the issuance of the
final order of the Secretary of Labor. The review shall
conform to chapter 7 of title 5. The commencement of
proceedings under this paragraph shall not, unless ordered by
the court, operate as a stay of the order.
(d) REMEDIES. -
(1) IN GENERAL. - An employee
prevailing in any action under subsection (c) shall be
entitled to all relief necessary to make the employee
whole.
(2) DAMAGES. - Relief in an action under subsection (c)
(including an action described in subsection (c)(3)) shall
include -
(A) reinstatement with the same
seniority status that the employee would have had, but for
the discrimination;
(B) any backpay, with interest; and
(C) compensatory damages, including compensation for any
special damages sustained as a result of the
discrimination, including litigation costs, expert witness
fees, and reasonable attorney fees.
(3) POSSIBLE RELIEF. - Relief in any
action under subsection (c) may include punitive damages in
an amount not to exceed $250,000.
(e) ELECTION OF REMEDIES. - 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.
(f) NO PREEMPTION. - Nothing in this section preempts or
diminishes any other safeguards against discrimination,
demotion, discharge, suspension, threats, harassment, reprimand,
retaliation, or any other manner of discrimination provided by
Federal or State law.
(g) RIGHTS RETAINED BY EMPLOYEE. - Nothing in this section shall
be deemed to diminish the rights, privileges, or remedies of any
employee under any Federal or State law or under any collective
bargaining agreement. The rights and remedies in this section
may not be waived by any agreement, policy, form, or condition
of employment.
(h) DISCLOSURE OF IDENTITY. -
(1) Except as provided in paragraph
(2) of this subsection, or with the written consent of the
employee, the Secretary of Transportation or the Secretary of
Homeland Security may not disclose the name of an employee of
a railroad carrier who has provided information about an
alleged violation of this part or, as applicable to railroad
safety or security, chapter 51 or 57 of this title, or a
regulation prescribed or order issued under any of those
provisions.
(2) The Secretary of Transportation or the Secretary of
Homeland Security shall disclose to the Attorney General the
name of an employee described in paragraph (1) if the matter
is referred to the Attorney General for enforcement. The
Secretary making such disclosures shall provide reasonable
advance notice to the affected employee if disclosure of that
person’s identity or identifying information is to
occur.
(i) PROCESS FOR REPORTING SECURITY
PROBLEMS TO THE DEPARTMENT OF HOMELAND SECURITY. -
(1) ESTABLISHMENT OF PROCESS - The
Secretary of Homeland Security shall establish through
regulations, after an opportunity for notice and comment, a
process by which any person may report to the Secretary of
Homeland Security regarding railroad security problems,
deficiencies, or vulnerabilities.
(2) ACKNOWLEDGMENT OF RECEIPT. - If a report submitted under
paragraph (1) identifies the person making the report, the
Secretary of Homeland Security shall respond promptly to such
person and acknowledge receipt of the report.
(3) STEPS TO ADDRESS PROBLEM. - The Secretary of Homeland
Security shall review and consider the information provided
in any report submitted under paragraph (1) and shall take
appropriate steps to address any problems or deficiencies
identified.
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