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Legislative Update November 2015

LEGISLATIVE UPDATE NOVEMBER 2015

By Kathleen Bisbikis, National 2nd Vice President, National Legislative Rep, BLET Auxiliary

Below are some of the most recent news items that affect all of us. Please feel free to share these with your local auxiliary. If you have information you would like to share with me for future updates, please send it to me at bletauxilliarylr@gmail.com.

HR 3819 – Surface Transportation Extension Act of 2015 (PTC)

On October 29, 2015, President Obama signed into law HR 3819. This legislation extends the deadline for railroads to implement the positive train control system (PTC). The new deadline is December 31, 2018. Railroads will also be given the opportunity to apply for a waiver of an additional two years beyond the December 31, 2018 deadline if it is needed. This new deadline should abolish any threats made by the carriers to shut down operations due to their inability to get PTC in place by the original December 2015 deadline and should keep the country’s rail traffic moving as usual.

Wisconsin Takes Rail Safety into Their Own Hands

This month, Wisconsin saw the derailment of two trains, both carrying potentially dangerous freight. In Alma, Wisconsin, 17,000 gallons of ethanol was spilled into the Mississippi River and, just a few days later in Watertown, Wisconsin, approximately 500 gallons of crude oil was spilled, causing an evacuation of nearby homes. Thankfully, in both cases there were no explosions or injuries. In both accidents, the tank cars were the older DOTs-111 models, but in the Watertown derailment they were DOT-111’s with the retrograde.

These back-to-back accidents caused the legislators in the state to demand that their voices be heard both on the state and federal levels. On the state level, Representative Jill Billings (D-LaCrosse) looked to her neighboring state of Minnesota and modeled a safety bill similar to theirs that would include the following: “The bill would provide for additional state rail track inspectors; require railroad companies to submit prevention and response plans to the state; provide training for local emergency first responders along railroad routes; provide guidelines for coordination and response timelines in the event of a derailment; and require the Office of the Commissioner of Railroads to submit a report to the legislature on emergency preparedness, assessment of training needs for first responders statewide, inventory of both public and private resources available in the event of a derailment, and recommendations to the legislature to improve preparedness and safety.”

In Milwaukee, Mayor Tom Barrett is concerned about the integrity of the bridges and infrastructure that is used in the transportation of the oil trains. Mayor Barrett said, “There has to be a stronger emphasis on safety — not just in urban areas but smaller communities as well. Watertown is not a large community. And the fact that you had to have evacuations, that is very problematic.”

On the federal level, Senator Tammy Baldwin (D-Wisconsin) has been pushing for the last several years to strengthen rail safety reform for areas hauling crude oil in her state: “I have been sounding the alarm for two years on the need to put in place strong rail safety reforms,” the Wisconsin Democrat said in a written statement. “These two train derailments are more evidence why Congress needs to take action on the reforms I have proposed.”

OSHA Publishes Final Rules for Transportation Employee’s Whistleblower Protection

On November 9, 2015, OSHA (Occupational Safety and Health Administration) published its final rule that will provide procedures and guidelines as well as timeframes for employees who have engaged in a whistleblower complaint.

“Railroad workers have the right to report injuries and to follow their doctor’s treatment plans for injuries sustained in the course of their employment without fearing that they will be retaliated against,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “Railroad and public transit agency workers must never be silenced by the threat of losing their job when their safety or the safety of the public is at stake.”

Employers are required to provide their employees with a safe work environment under the Occupational Safety and Health act of 1970. Through the use of this Final Rule that went into effect immediately on November 9, 2015, OSHA will be better able to enforce and ensure that employees are working in a safe environment without the threat of retaliation.

  1. Prompt medical treatment violations or interference with medical treatment cases will be handled procedurally the same way as all other whistleblower cases.
  2. A refusal to allow an employee to return to work, which is not based on standards recorded in the railroad’s official policies, not uniformly applied, or not medically reasonable, can be offered to demonstrate that the refusal is not a legitimate safety concern, but rather motivated by retaliatory intent.
  3. The time limit to file a whistleblower complaint is 180 days after the railroad’s decision has been made and communicated to the employee. To clarify, this is when the employee is aware or should be aware of the decision, not when the employee learns of the retaliatory nature of the action.
  4. A contributing factor for a retaliatory action is that the adverse action must take place within a temporal time of the protected activity, or at the first opportunity available to the retaliating manager. That can be a number of years between the protected activity and the retaliatory actions in situations where the manager did not have the opportunity to retaliate until a later time.
  5. Interest on awarded back pay will be computed by compounding daily IRS interest rates for the underpayment of taxes, which is currently the Federal short-term rate plus three percent.
  6. Front pay is a potential remedy where reinstatement is not possible because of the unacceptable working relationship, the position has been abolished, or the employee is medically unable to work because of severe depression caused by the retaliation.
  7. OSHA has the authority to grant injunctive relief such as expunging certain personnel files, not applying a policy to an employee, posting a notice regarding a whistleblower result, training for managers, etc.
  8. Hearsay evidence is admissible.
  9. An employee filing a complaint in district court must give notice to OSHA within seven days after filing the complaint.
  10. An employee may file both a whistleblower and a FELA complaint at the same time. If violations of other laws are involved, employees may also file those complaints at the same time.

Ohio Replaces Signs at Railroad Crossings

Railroad crossings across the State of Ohio are getting a facelift. More than 1000 yield signs are being replaced with stop signs. Ohio Department of Transportation is hopeful that the stop signs will cause people to pay closer attention at crossings. By stopping and looking both ways before proceeding over the tracks, it is Ohio’s intention to increase safety for drivers as well as train crews and decrease the number of crossing accidents. Way to go Ohio!

FSA to Continue in 2016

Thanks to all the BLET members who enrolled in the Flexible Spending program. Because of all of you, we will once again have this program available to us in 2016. The 2012 National Agreement states that a minimum of 7.5% of eligible engineers must enroll in the program or the carrier would have the option to terminate it. This year, for 2016 enrollment 8.65% of eligible employees signed up for this great benefit. This year’s enrollment number beats that of last year’s 8.57% for 2015. “The Health FSA program has proven to be a money saver for BLET families over the past few years,” President Pierce said. “I am optimistic that participation levels will continue to increase as the word spreads about the plan’s benefits and more members become familiar with the positive aspects of the plan.”

The FSA is a great tool that can be used to cover out of pocket medical expenses such as deductibles, co-pays, and prescription costs that are not covered, as well as dental and optometric out of pocket expense.

Feinberg Confirmed as FRA Administrator

The Senate has confirmed President Obama’s nomination of Sarah Feinberg as the new administrator of the Federal Railway Administration. Feinberg has been the acting administrator since January 2015 when former administrator Joseph Szabo resigned. Ms. Feinberg’s previous positions include Chief of Staff of the DOT, Director of Policy and Crisis Communication at Facebook, as well as Special Assistant to the President and Senior Advisor at the White House. Feinberg is the second woman to be named as the FRA administrator since its beginnings in 1966.

Support for S-2148 Protecting Medicare Beneficiaries Act of 2015

On October 7, 2015, Senator Ron Wyden (D-OR) and 20 supporting colleagues introduced S.2148, the “Protecting Medicare Beneficiaries Act of 2015.” The purpose of the bill is to prevent large increases in Medicare Part B premiums and deductible in 2016.

It has been announced that there will be no cost of living increase for 2016 for Social Security and Railroad Retirement beneficiaries, and the potential increase of up to 52% in Medicare premiums would raise the amount from its current $104.90 per month to $159.30 for Part B premiums. Medicare beneficiaries would also see their deductible potentially climb from $147.00 a year to $223.00. S.2148 would freeze the current rate at the 2015 level and provide more stability for those who would be affected. Sen. Wyden said, “It is urgent that Congress take decisive action to ensure vulnerable Americans aren’t harmed by this archaic policy.”

Your support for S-2148 is needed to protect those who would be affected. You are encouraged to contact your congressman to ask for their support of S.2148.

Railroad Unemployment and Sickness Benefits will Decrease

The below information was taken directly from RRB.gov –

“Beginning October 1, 2015, the U.S. Railroad Retirement Board (RRB) will reduce railroad unemployment and sickness insurance benefits by 6.8 percent, down from the current 7.3 percent reduction, due to federal budget cuts required by law.

The adjusted reduction amount is based on revised projections of benefit claims and payments under the Railroad Unemployment Insurance Act. It will remain in effect through September 30, 2016, the end of the fiscal year. Reductions in future fiscal years, should they occur, will be calculated based on applicable law.

The daily benefit rate is $72, so the 6.8 percent reduction in railroad unemployment and sickness benefits will reduce the maximum amount payable in a 2-week period with 10 days of unemployment from $720.00 to $671.04.

Certain railroad sickness benefits are also subject to regular tier I railroad retirement taxes, resulting in a further reduction of 7.65 percent. Applying the 6.8 percent reduction to these sickness benefits will result in a maximum 2-week total of $619.71.

These reductions are required under the Budget Control Act of 2011 and a subsequent sequestration order to implement the mandated cuts. The law exempts social security benefits, as well as railroad retirement, survivor, and disability benefits paid by the RRB, from sequestration.”

When sequestration first took effect in March 2013, railroad unemployment and sickness benefits were subject to a 9.2 percent reduction. Under the law’s requirements, this amount was then adjusted to 7.2 percent in October 2013, and 7.3 percent in October 2014.

In fiscal year 2014, the RRB paid $11.9 billion in retirement and survivor benefits to about 562,000 beneficiaries, and net unemployment-sickness benefits of $84.4 million to nearly 25,000 claimants.

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