The FRSA protects employees from retaliation for “reporting, in good faith, a hazardous safety condition.” In a recent landmark decision, the 2nd Circuit Court of Appeals held that such good faith only requires proof of a subjective belief, and rail workers do not have to prove both a subjective and objective basis for believing a condition is hazardous. Ziparo v. CSX Transp. Inc.
The 8th Circuit now endorses and follows that standard. In Monohon v. BNSF Ry. Co., the 8th Circuit holds “good faith as used in the FRSA requires only that the reporting employee honestly believes that what she reports constitutes a hazardous safety condition.”
The 8th Circuit goes on to note that the refusal-to-work provision of the FRSA has a higher standard and does require proof of objective reasonableness. However, the FRSA’s refusal-to-work provision is rarely invoked, while there is a multitude of hazardous condition reporting cases.
Regarding damages, the 8th Circuit Monohon decision also addresses reinstatement versus front pay. The FRSA states that an employee who prevails in a FRSA action “shall be entitled to all relief necessary to make the employee whole.” The 8th Circuit notes the FRSA goes on to state such relief “shall include” reinstatement, and so “unambiguously requires reinstatement.” However, the Circuit Court also recognizes “this requirement is not absolute” and that courts have the discretion to award front pay when reinstatement is not possible. But there is no question reinstatement is the default FRSA remedy, and can be replaced by front pay only under limited circumstances, or by agreement of the parties.
Of note, both Ziparo and Mohohon analyze and apply the plain meaning of Section 20109’s unique statutory language. This is consistent with the Supreme Court’s approach to statutory interpretation, and highlights the plain error of courts that fail to apply Section 20109’s plain statutory language, as for example by ignoring the FRSA’s statutory “due in whole or in part” contributing factor standard causation standard and applying a “proximate cause” standard instead.