DOLOn November 24, 2015, the ARB adopted an expansive interpretation of what constitutes an adverse action for claims asserted under the Federal Railroad Safety Act of 1982 (FRSA), holding that a reduced performance rating with no compensation-related consequences and a failure to pay medical bills in connection with a work-related accident are actionable. Fricka v. National Railroad Passenger Corp., ARB Case No. 14-047 (Nov. 24, 2015).

Background

Complainant was injured while traveling to perform work-related duties on his personal motorcycle. He reported the accident as work-related, but the Company classified the injuries as not work related and declined to pay his medical expenses. Shortly after he returned to work in 2011, he received a “Needs Development” rating on his annual review, which was lower than the score he received for his mid-year review. Complainant filed a complaint with OSHA, alleging that he was retaliated against after he reported a workplace injury in violation of the FRSA whistleblower-protection provision. OSHA and then an ALJ rejected his claims. The ALJ found that Complainant did not suffer an adverse employment action.  Complainant appealed to the ARB.

The ARB’s Decision

The ARB focused on whether the Company’s refusal to pay Complainant’s medical bills and his performance appraisals constituted adverse actions under FRSA. The ARB held that although the definition of an adverse action under Title VII can be a helpful guide, it is not determinative in cases asserting claims under FRSA. Finding that the statutory language of the FRSA was more analogous to that of Sarbanes-Oxley (SOX) than Title VII, the ARB concluded that an adverse action for purposes of FRSA claims included “unfavorable employment actions that are more than trivial, either as a single event or in combination with other deliberate employer actions alleged.” Using this standard, the ARB concluded that the Company’s classification of Complainant’s injury as non-work related was unfavorable and more than trivial, noting that this decision allowed the Company to avoid paying for significant medical bills. The ARB also concluded that the 2011 performance rating constituted an adverse action, holding that a performance review does not need to have a tangible or material impact on salary to be considered adverse.

Implications

This is another example of the applying a fairly loose standard of what constitutes an adverse employment action, consistent with cases like those under SOX that apply the frame work under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21). Indeed, this decision shows that conduct that may not be actionable under Title VII suit could potentially give rise to liability under statutes like FRSA and SOX.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Whistleblower, Restrictive Covenant and Trade Secret Practice.

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Whistleblower, Restrictive Covenant and Trade Secret Practice. Steven’s national practice focuses on defending companies in federal and state courts and arbitration against claims of: discrimination, retaliation and harassment, including claims brought by high-level executives; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations (including class, collective and PAGA actions).

Illustrating his versatility, Steven has successfully handled bench and jury trials in multiple jurisdictions (e.g., Illinois, California, Florida and Texas); defended one of the largest Illinois-only class actions in the history of the federal courts in Chicago; and prevailed following his oral arguments before the Seventh Circuit and state appellate courts. Steven brings his litigation experience to bear in counseling clients to minimize risk and avoid or prepare for success in litigation.

Investigations. Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Thought Leadership and Accolades. Steven was named Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He was also named as One of the Top 10 Impactful Labor & Employment Lawyers in Illinois for 2023 by Business Today. He is a Fellow of the College of Labor and Employment Lawyers. Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Chambers also reports that “He is someone who can navigate the twists and turns of litigation without difficulty. Steven is great with brief-writing, crafting arguments, and making sure the client is always happy.”

Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven was appointed to Law360’s Employment Editorial Advisory Board and selected as a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is often quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC, and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

In 2024, Steven received the Excellence in Pro Bono Service Award from the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association.

Photo of Allison Martin Allison Martin

Allison Martin is a senior counsel in the Labor & Employment Law Department. Allison represents employers in a wide range of employment litigation matters, including employment discrimination, harassment and retaliation lawsuits arising under federal, state and local statutes; wage-and-hour claims; defamation and tort…

Allison Martin is a senior counsel in the Labor & Employment Law Department. Allison represents employers in a wide range of employment litigation matters, including employment discrimination, harassment and retaliation lawsuits arising under federal, state and local statutes; wage-and-hour claims; defamation and tort claims; and breach of contract claims. An experienced litigator, she has secured significant victories for clients in federal and state courts at the trial and appellate levels, as well as in arbitration tribunals. In addition to single-plaintiff cases, Allison’s practice also includes defending against nationwide class and collective action lawsuits. She also has significant experience with EEOC proceedings, including representing clients in connection with EEOC Commissioner Charges and investigations concerning alleged claims of systemic discrimination.

Allison also counsels clients on a broad range of employment matters, including advising on investigations, employment agreements, employment policies and procedures, and employee terminations and discipline. She also has significant experience conducting high-profile internal investigations involving allegations of discrimination, harassment and other workplace misconduct.

Allison has an active pro bono practice focused on criminal justice, domestic violence and animal rights issues.

Earlier in her career, Allison served as a law clerk to Magistrate Judge Katharine Parker in the U.S. District Court for the Southern District of New York.

At Seton Hall University School of Law, Allison was an Articles Editor for the Seton Hall Law Review. Allison also interned for Chief Judge Garrett E. Brown (Ret.) of the U.S. District Court for the District of New Jersey while in law school.