Federal Employers' Liability Act (1908)
Federal Employers' Liability Act (1908)
John Fabian Witt
Congress adopted the Federal Employers' Liability Act (FELA) (35 Stat. 65) in 1908. FELA governs the circumstances under which an injured employee of any interstate railroad (as well as any railroad in the District of Columbia or a United States Territory) may recover damages in a lawsuit against the railroad. During America's great economic expansion, FELA has served as an important component of the law addressing workplace injuries. At the same time, the Act has been a subject of considerable controversy.
LEGAL AND WORKPLACE HISTORY LEADING TO FELA
In the United States, legal rules for the governance of workplace injuries first developed in state courts in the 1830s and 1840s. Employees injured on the nation's early railroads brought the first lawsuits to recover damages from their employers for injuries arising out of the course of their employment. In court decisions such as the leading case of Farwell v. Boston & Worcester Railway (1842), a Massachusetts Supreme Judicial Court decision, nineteenth-century state courts held that in order to recover damages from an employer in an injury case, an injured employee had to establish that the employer's negligence caused the injury. Moreover, although the doctrine of vicarious liability generally deemed an employer liable for damages caused by its employee's negligence, nineteenth-century courts ruled that an injured employee could not recover from the employer when co-workers' negligence caused the injury. Instead, courts held that employees assumed the ordinary risks of employment (including injury at the hands of a negligent fellow servant) as part of their employment contract. Finally, courts held that even where an injured employee could establish to a jury that the employer's own negligence had been a cause of the injury, the employee nonetheless could not recover any damages if the employee had also been negligent and that negligence had also contributed to the injury. Together these three rules—the fellow servant rule, the doctrine of assumption of risk, and the doctrine of contributory negligence—comprised the "unholy trinity" of rules that made it exceedingly difficult for injured employees to recover damages from their employers.
During the second half of the nineteenth century, the early trickle of injured employee lawsuits became a steady stream as the number of work accidents increased dramatically during these years. By the turn of the twentieth century, work-related accidents killed one in three hundred railroad employees each year, and one in fifty was injured in an accident. In 1908 alone, 281,645 employees were injured at work, and some 12,000 killed.
Against the background of an industrial accident crisis, state governments began enacting statutes limiting one or another of the rules that made it difficult for employees to sue their employers for work injuries. By 1911, twenty-five states had enacted laws that abolished the fellow servant rule (making employers liable for injuries to one employee caused by the negligence of another), abolished the rule of assumption of risk, or amended the doctrine of contributory negligence.
Pressure to enact such a statute also arose at the federal level in Congress, where increasingly powerful railway labor unions as well as President Theodore Roosevelt, argued that the law should make it easier for injured railroad employees to recover damages from their employer. In 1906, notwithstanding bitter opposition from the nation's railroad corporations, Congress responded to the unions and President Roosevelt by enacting a sweeping employers' liability reform statute pursuant to its authority to regulate interstate commerce in Article I, Section 8 of the Constitution. Known as the First Federal Employers' Liability Act, the 1906 statute sought to amend the law of employers' liability for work injuries for all employees of railroads and other "common carriers" engaged in interstate commerce. The act would have abolished the fellow servant rule and would have provided that where the contributory negligence of an injured employee was slight and the negligence of the employer was gross in comparison, the employee would not be precluded by that contributory negligence from recovery. Rather, in such cases, the damages recoverable from the employer would be reduced in proportion to the total negligence attributable to the employee.
The 1906 act would have constituted a massive expansion of federal authority into a realm that had theretofore been governed by state law. In the First Employers' Liability Act Cases, decided in 1908, however, the United States Supreme Court struck down the act as beyond Congress's power under the Commerce Clause. The Court reasoned that the Commerce Clause might allow Congress to enact legislation governing the liability of interstate railroads to injured employees who were themselves injured in interstate commerce, but that the clause did not allow Congress to enact legislation governing the liability of a railroad (interstate or otherwise) to an employee who was injured in the course of purely local, non-interstate business.
A NEW FEDERAL LAW: FELA
At President Roosevelt's urging, Congress quickly took up the matter of interstate railroad injuries following the Supreme Court's decision, and in 1908 enacted the Second Federal Employers' Liability Act, now generally known simply as the FELA. This act applied only to employees of interstate railroads who were themselves employed in interstate commerce, or to employees of railroads who were themselves employed in the District of Columbia or in a United States Territory. Under the Act, a railroad covered by the act
shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.
FELA amended the contributory negligence doctrine by providing that "the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." Amendments Congress enacted in 1939 further provided that injured employees "shall not be held" to have assumed the risks of their employment, thereby abolishing the doctrine of assumption of risk for workplace accidents.
The history of the FELA indicates the early difficulties lawmakers faced in expanding the authority of the federal government. The federal legislation encroached boldly on the areas ostensibly allocated to the control of the states, leading the Supreme Court to strike down the law. Since the late 1930s, however, the courts have afforded Congress much wider authority in exercising its Commerce Clause power. After a 1939 amendment to the FELA that extended its reach to any injured railroad employee whose work furthered or affected interstate commerce, the FELA once again reaches virtually all employees of interstate railroads.
More broadly, for the first century of its existence, the FELA has been the leading representative of the country's two main approaches to the problem of providing compensation to injured employees. Under the FELA, injured railroad employees sue their employers in a federal or a state court and seek to prove to a jury that the negligence of the employer or other employees caused the plaintiff's injury. When the jury finds that the employee has satisfied these requirements, it then awards damages based on its determination of such factors as the lost wages, medical care costs, and pain and suffering of the employee. Not all cases result in damages to injured employees, however. One estimate in 1990 found that as many as 26 percent of FELA lawsuits resulted in victories for the employer.
THE INTERACTION BETWEEN FELA AND STATE LAW
The other leading approach is represented by state workers compensation laws, which were enacted in every state beginning in 1910. Under the workers' compensation approach, injured employees file claims with state administrative boards, and all claims for injuries arising out of or in the course of employment result in awards of compensation. Compensation amounts, however, are limited to a statutory schedule, often amounting to medical care costs, plus one-half to two-thirds of weekly wages during the period of disability, subject to a maximum of one-half to two-thirds the state average weekly wage. Compensation awards under state workmen's compensation systems are thus virtually automatic, regardless of whether the injured employee is able to establish the negligence of the employer, but are generally much lower than damages awards under the FELA.
Controversy abounds among railroad employers and railroad labor unions as to which approach—employers' liability under the FELA or workers' compensation—is better policy. In 1912 railroad employers resisted the adoption of a workers' compensation system for railroad employee injuries—a system that many railroad labor unions supported. Today the positions are reversed. Employers argue strongly in favor of replacing the FELA with workers' compensation, reducing exposure to monetary judgments to employees at relatively low maximum limits. They argue that the FELA results in unjustified awards for damages in dubious cases, and that employees' lawyers in FELA cases take large portions of damages awards for their fees—money that thus does not go to injured railroad employees and their families. Railroad labor unions, by contrast, favor maintaining the FELA. They contend that the relatively unfettered jury discretion in damages awards under the FELA provides more significant compensation to injured railroad employees and their families than limited workers' compensation awards do. Moreover, they argue that the threat of damages awards in FELA cases creates powerful incentives for railroad employers to maintain safe work facilities.
Perhaps most significantly, since at least the 1990s, the FELA has become a national pacesetter for the developing tort law in state and federal courts around the nation. Many of the most significant issues in American tort law—questions such as when emotional distress damages are available and how to allocate damages among joint wrongdoers—are being decided in FELA cases by the U.S. Supreme Court. Though these decisions are not binding on state and federal court torts decisions outside of the FELA context, they have become enormously influential in shaping the trajectory of state and federal tort decisions. In a sense, the FELA at the beginning of the twenty-first century has brought the American law of torts full circle. In 1908, the FELA borrowed from the developing state tort law; a century later, state tort law has begun to model itself after the FELA.
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The Transcontinental Railroad
Considered one of the greatest technological achievements of the nineteenth century, the transcontinental railroad linked the eastern states to California, reducing the time it took to cross the continent from four months to one week and providing the critical key to rapid westward expansion. The project was first proposed in 1845, but arguments between the North and South over the route to be taken and whether slavery would be allowed in the western territories delayed a decision until the Civil War. In 1862 the Union eliminated Southern concerns from consideration, and President Abraham Lincoln formally launched the project by signing the Pacific Railroad Act. The railroad was to be built by two companies, each receiving government loans, land grants for every mile completed, and permission to use building materials from the public domain. The two companies raced to cover as much territory as possible in order to secure the maximum possible land and financing. The Central Pacific Railroad, building east from Sacramento, employed seven thousand Chinese immigrants to carve a route through the Sierra Nevada mountains. Progress was slowed by winter snowstorms and by the danger of the work: using explosives to tunnel through rock, many workers were killed. The Union Pacific Railroad, building west from Omaha, was working on flat terrain, but its progress was slowed by conflicts with Native Americans who saw the rail-road as a violation of their treaties with the U.S. government and a threat to their way of life. In May 1869 the companies met at Promontory Point, Utah, where a golden spike was driven to join the two rail lines. The nation celebrated when both coasts received the telegraph announcing the project's completion, which read simply, "Done."
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