Documenting Railroad Safety Hazards: The FRA “Cell Phone Trap” and How to Protect Yourself

This is one of the most heavily litigated and dangerous intersections of federal railroad regulations right now. There is Federal Railroad Administration (FRA) protection for documenting safety hazards, but the regulation contains a specific “trapdoor” regarding personal cell phones that railroads are actively using to terminate whistleblowers and suppress evidence.

Here is a breakdown of the law and how our firm advises you to navigate it.

The FRA Regulation and the New “No Cell Phone” Rules

Following several high-profile accidents caused by engineer distraction, the FRA implemented strict rules prohibiting the use of personal electronic devices by operating employees. In response, major railroads have adopted zero-tolerance “no cell phone” operating rules (such as GCOR 2.21). These rules mandate that personal cell phones must be completely powered off and physically stowed out of sight within an employee’s grip while on moving equipment, in the foul of the tracks, or performing any safety-sensitive duties.

However, the FRA specifically created an exception for whistleblowers documenting safety hazards—but drafted it in a way that catches many workers off guard.

Under 49 C.F.R. § 220.309(c), an employee is permitted to use an electronic device to take a photograph of a safety hazard or a violation of a rail safety law, provided that the device is turned off immediately afterward.

The Catch: The regulation explicitly states that a camera that is part of a personal cell phone or multi-functional device is not included in this exception. To be protected under the FRA rule, you must use a railroad-supplied device for an authorized business purpose, or a stand-alone camera.

The Electronic Code of Federal Regulations (eCFR)

If you pull out your personal smartphone to take a picture of a defective handbrake or an oil spill, you are committing a federal regulatory violation and violating the railroad’s new operating rules.

The FRSA Whistleblower Clash

When an employee takes a picture of an accident scene or a safety hazard with a personal cell phone and provides it to their union or our attorneys, the railroad will almost certainly bring disciplinary charges.

If you file a retaliation claim under the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109, the railroad will assert an affirmative defense. The carrier will argue that it did not fire you for reporting a safety hazard (which is protected activity); rather, it fired you for violating the strict federal and company rules prohibiting personal cell phone use on duty. Because railroads classify cell phone violations as severe, dismissible offenses, they often successfully argue they would have fired you regardless of the protected activity.

How We Advise Our Clients to Protect Themselves

Because railroads aggressively monitor inward-facing cab cameras and audit for electronic device violations following any injury report, our firm issues the following strict guidance to protect your job and your FELA claim:

• Buy a Stand-Alone Digital Camera: We advise all train, engine, and yard workers to buy a cheap, non-transmitting, stand-alone digital camera (like a basic point-and-shoot) and keep it in your grip. Because a stand-alone camera is explicitly protected under the 49 C.F.R. § 220.309(c) exception, the railroad cannot legally discipline you for using it to document a hazard.
• Keep Your Cell Phone Stowed and Powered Off: Never, under any circumstances, use your personal cell phone to photograph a defect while on moving equipment, in the foul of the tracks, or performing safety-sensitive duties.
• Use the Buddy System: If you do not have a stand-alone camera, bring your conductor, engineer, or another crewmember over to physically view the defect so they can serve as an eyewitness in a later deposition or FRSA hearing.
• Rely on Paper Documentation: If a camera is unavailable, immediately write down the locomotive number, milepost, and a detailed description of the defect in your personal notebook. Ensure you note the defect specifically on your tie-up slip or formal accident report.

About the Author

Mike C. Miller

Of Counsel — Board Certified Personal Injury Trial Lawyer

With more than 40 years of trial experience, Mike Miller has dedicated his career to representing injured workers in FELA railroad cases, trucking accidents, oilfield injuries, maritime claims, and wrongful death litigation. A graduate of the University of Texas School of Law, he holds an AV Preeminent Rating from Martindale-Hubbell — the highest distinction for legal ability and professional ethics.

• UT School of Law, J.D. 1984
• AV Preeminent Rated
• 40+ Years Trial Experience
• Board Certified, TBLS

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