The Third Circuit Court of Appeals reversed a lower court’s decision in favor of the railroad in a claim brought pursuant to the Federal Rail Safety Act (FRSA). The case, Araujo v. New Jersey Transit Rail Operations, Inc., was decided on February 19, 2013, and is the first interpretation of the FRSA by a federal court of appeals. Included in the decision is the affirmation of Congress’ intent that the FRSA be protective of plaintiff-employees. The burden of proof is much lower on an employee claiming retaliation than the burden on the railroad to establish a defense. The inequities built into the statute are intentional, and are meant to address the long history in the railroad industry of harassing employees who engage in protected activity. The court stated in its opinion that “the rail industry has a long history of underreporting incidents and accidents in compliance with Federal regulations. The underreporting of railroad employee injuries has long been a particular problem, and railroad labor organizations have frequently complained that harassment of employees who reported injuries is a common railroad management practice.”

As I’ve previously written on this blog, it is a common practice by some railroads to use a system of employee rules testing as a form of harassment. Within this system, railroad management and supervisors selectively enforce rules, which are typically overlooked or ignored, against employees who have recently engaged in protected activity. The Araujo decision makes clear that even if an employee violates a railroad’s written rules, it is not a valid defense to an FRSA claim if the employee can show that the rule was never previously enforced. (“While the facts in the record may show that Araujo was technically in violation of written rules, they do not shed any light on whether NJT’s decision to file disciplinary charges was retaliatory.”)

The Third Circuit’s decision was the first step in establishing the full extent to which the FRSA can provide protection to railroad employees who engage in protected activities. Hopefully the railroads are paying attention.