What Is A “Good Faith” Refusal?
Under subsection (a)(2) of the Federal Rail Safety Act, it is protected activity for an employee “to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety.” Now comes a Circuit Court decision clarifying what qualifies as “a refusal” to violate a FRA safety regulation.
In Rookaird v. BNSF Railway Company, the 9th Circuit Court of Appeals explains how an employee’s refusal of a direct order or an implicit order is protected by the FRSA:
an employee’s refusal need not be precipitated by an explicit directive in order for the employee’s refusal to be FRSA protected activity. The word “refuse” in the FRSA is a clear reference to the employees conduct, not the employer’s. And while certainly an explicit order can be “refused,” statements or conduct of the employer can amount to an implicit order, and an employee can refuse to follow that implicit order just as much as an explicit one.
Moreover, the Circuit Court rejected BNSF’s argument that such refusals only apply to actual violations of FRA regulations:
BNSF effectively asks us to add the word “actually” before “violate” in paragraph (a)(2). We reject this narrow interpretation of (a)(2) as incorrectly narrowing its intended scope. To constructively add the word “actually” into paragraph (a)(2) would undercut the good faith requirement that applies throughout subsection (a). Congress’s use of the phrase “in good faith” in subsection (a) means that it intended for paragraph (a)(2) to extend to an employee’s good faith refusal to undertake conduct the employee believed to be violative of a law, rule, or regulation, even if the conduct at issue would not constitute an actual violation of a law, rule, or regulation if performed or continued.
And such an interpretation is consistent with the good faith standard applicable to reporting a work related injury. The Circuit Court noted that federal courts interpreting what injury reports are protected by the FRSA
have refused to construe paragraph (a)(4) to require that the reported injury actually be work-related. Rather, those courts require only that the employee have had, at the time of notification, a good faith belief that the injury was work-related: the employee must show that “he subjectively believed his reported injury was work-related,” and that “his belief was objectively reasonable.” If the employee turns out to have been mistaken (that is, the injury was not actually work-related), the railroad can still be liable under paragraph (a)(4), provided that the employee’s notification was done in good faith.
Further Weakening Kuduk’s Mischief
And the 9th Circuit’s decision in Rookaird further weakens the 8th Circuit’s notorious insertion of the mischievous phrase “intentional retaliation” in Kuduk v BNSF. The fact is, employees do not have to prove the railroad had an intentional motive to retaliate. Even the 8th Circuit in Kuduk recognizes that fact, as does the 5th Circuit, 7th Circuit, and 9th Circuit: all hold that an employee’s prima facie showing “does not require that the employee conclusively demonstrate the employer’s retaliatory motive.” All an employee must prove is that one or more of the managers involved in the chain of discipline or adverse action against him had some knowledge of his protected activity.
For more on the proper reading of Kuduk, go to When Context Is Everything and A Distinction Without A Difference. For more on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.