Subcontracting in the rail industry: Liability under FELA

A key part of the Federal Employers' Liability Act is that railroad companies remain liable for worker injuries even when they subcontract tasks to other companies. Under FELA, which Congress created in 1908, railroad companies must provide a reasonably safe workplace, training, supervision, and equipment. This liability reaches any work outsourced to third parties, ensuring the primary employer remains legally accountable for the safety of all work performed under its control, regardless of who the worker's direct employer is.

FELA's non-delegable duty

Under FELA, railroads must provide a safe workplace and are held responsible for injuries to employees caused in whole or in part by railroad negligence. This responsibility is broad and cannot be passed off to others, so a railroad cannot escape liability simply by subcontracting tasks to another firm.

Courts have determined this means the railroad's duty to provide a safe workplace doesn't end when it contracts out operational work that creates hazards for workers. The railroad remains liable when negligence by the employer, its officers, agents, or employees had any part in the harm.

How subcontractors fit into FELA claims

If the railroad continues to control, supervise, or direct the work of subcontracted personnel, courts may consider those subcontractors as borrowed servants or agents of the railroad. Under those circumstances, injuries may still give rise to FELA claims against the railroad, even though the injured person was technically employed by a subcontractor.

In Kelly v. Southern Pacific Co., the Supreme Court recognized that non-railroad employees can be covered by FELA when they qualify as borrowed servants, meaning the railroad exercised significant control over their duties and work conditions at the time of injury.

In determining whether a subcontracted worker falls under FELA, courts look at factors such as who supervised or directed the work being done at the time of injury, who selected and paid the worker or contractor, who controlled the tools, methods, and timing of the work, and whether the railroad retained sufficient control over the work. If the railroad retained sufficient control, a subcontracted worker can still be treated as an agent of the railroad for purposes of FELA liability.

Simply labeling someone as a subcontractor or independent contractor does not guarantee immunity. Courts focus on the substance of the working relationship. If a worker is effectively under the railroad's direction and control in performing railroad-related duties, that worker may still be covered by FELA.

Railroad remains responsible for safety

Even if a railroad outsources work to another firm, the primary railroad remains responsible under FELA for providing a reasonably safe workplace and overseeing safety. If a subcontracted task creates a hazard, such as inadequate maintenance, unsafe switching operations, or poorly supervised construction work, and that hazard contributes to a worker's injury, the railroad may be held liable.

This means railroads cannot use subcontracting as a way to escape FELA liability. A railroad that brings in a subcontractor for track maintenance still has a duty to make sure the work gets done safely. If the subcontractor uses faulty equipment, doesn't provide proper training, or creates unsafe conditions, and a worker gets injured because of it, the railroad can be held responsible if it kept control over the work or didn't ensure safe practices.

Contractual attempts to limit liability are ineffective

Contract provisions that try to shift liability entirely to a subcontractor or require subcontracted workers to waive rights to FELA protections generally do not absolve the railroad of liability. FELA's protections and requirements are non-waivable by contract. Courts will enforce FELA rights no matter what internal agreements exist between railroads and subcontractors.

This protection exists because allowing railroads to contract away liability would undermine the purpose of FELA. Workers would be left without recourse when injured due to railroad negligence, simply because the railroad chose to hire a subcontractor rather than employ workers directly.

What injured subcontractors should do

If you are a subcontractor who has been injured while working on railroad tasks, protecting your rights requires immediate action. Seek medical attention as soon as possible after the injury and ensure that all injuries are documented thoroughly by medical professionals, as this documentation will be vital for any future claims.

Report the injury to your direct supervisor or employer immediately. Also, report the incident to the main railroad company if possible, as they are the primary contractor. Document when and whom you reported the injury to, and keep a copy of any written report you submit.

Collect as much information as you can about what happened, including the conditions that caused the injury, names and contact details of witnesses, photos of the location and any equipment involved, and detailed notes on what occurred before, during, and after the incident.

Maintain records of all medical care, receipts, and communications related to your injury. This covers hospital visits, medications, rehabilitation, and any expenses you had to pay out of pocket due to the injury.

Get legal help for your subcontractor injury FELA claim

FELA claims with subcontractors can get complicated because railroads often try to avoid liability by saying the injured worker wasn't their employee. Figuring out whether you were a borrowed servant, whether the railroad had enough control over your work, and whether the railroad's negligence caused your injury requires legal expertise.

ELG Law has more than 35 years of experience representing railroad workers and subcontractors. We know how to prove that railroads retained control over subcontracted work and how to show their negligence caused injuries. If you got hurt while working for a subcontractor on railroad property or doing railroad-related tasks, get in touch with us for a free consultation about your FELA claim.