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 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?

GOETSCH: When it comes down to reporting an injury, or knowing you’re going to be fired, or your life is going to be made miserable by your manager, people were choosing to remain silent. This had to change. For the last four or five years now, since I read the law, I’ve kind of taken a personal interest in trying to ensure that the law is applied.

LAW TRIBUNE: You started a website, and a blog about this.

GOETSCH: I have over 500 subscribers to the trainlaw blog, OSHA investigators, attorneys, regulators who use it as a resource for the Federal Rail Safety Act. As a result, I’ve been getting calls from all over the country from attorneys. I tried the first cases and had the first jury trial with [U.S. District Judge Janet B.] Arterton in New Haven last year. This first court decision [at the circuit level] is part of having a national whistleblower practice. That’s what’s happened to me. It’s kind of evolved in a way I never expected, but because I’ve been out there on the front lines, people turned to me, clients all over the country.

LAW TRIBUNE: What is really new here?

GOETSCH: There’s a body of law that involves whistleblower complaints, with distinctly different standards that apply. Most attorneys are familiar with the U.S. Supreme Court’s three-part, burden-shifting process [for employment discrimination, under Title VII of the Civil Rights Act of 1964]. Because [railroad] whistleblower statutes are intended to protect employees, and make it difficult for employers to retaliate, their standards are far more favorable toward the employee than the standard Title VII test. The new appellate ruling makes clear that a very worker-friendly, two-part test applies, not the old three-part test for workplace retaliation.

LAW TRIBUNE: Please outline the differences between the standard three-step test and the railroad industry two-step test.

GOETSCH: In the first step [of the standard test], the plaintiff shows a basic prima facie case of discrimination. The second step, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for what was done. And in the third step, the employee must prove the employer’s reason is pretextual — or otherwise invalid. In each of those steps, the burden of proof is by a preponderance of the evidence.

The Federal Railroad Safety Act now has a court decision illustrating its radically different standard. In this case, the trial judge had applied the standard three-part test. That was legal error. In the new railroad whistleblower law, what you have is a two-step process by different burdens of proof.

In the first step, the railroad worker presents a prima facie case of some retaliation for whistle-blowing. That could be by the most circumstantial evidence. You do not have to show a retaliatory motive. You do not have to show even that the protected activity [whistle-blowing, reporting safety flaws] was a substantial cause of the retaliation. All you have to show is that the protected activity was some part of the cause for the retaliation.

LAW TRIBUNE: And what caused you to win this appeal is the second step, the employer’s high burden to disprove the plaintiff’s case?

GOETSCH: Yes, the employers must prove by clear and convincing evidence that they would have done the exact same thing in the absence of the railroad worker’s activity. That’s a very high hurdle to clear for any railroad.

LAW TRIBUNE: It’s a brand new decision. Has it had any effect yet?

GOETSCH: This is not just having an impact in the Third Circuit. This is the first and only circuit court decision on the whistleblower standard nationwide, and it’s having an effect on pending cases at the trial level, and also in circuit courts that are making decisions in this area. Other circuits are not bound by it, but they may well be persuaded by it. I think it’s a very strong, well-reasoned decision — a landmark.•