We all know that “reporting in good faith a hazardous safety condition” is protected activity under Section 20109 of the FRSA. But what does “good faith” mean? Is it just the employee’s subjective belief, or must it also be objectively reasonable?
The cases are tending toward requiring both, and March v. Metro North Railroad is a recent example. There, the district judge found FRSA Section (b)(1)((A) requires both a subjective and objectively reasonable belief there was a hazardous condition. But in Frost v. BNSF Railway, the 9th Circuit confirmed that when answering that question, the focus always must be on the worker, not the railroad.
In Frost, the Circuit Court held it is reversible error to instruct a jury that a railroad cannot be held liable if it terminated an employee “based on its honestly held belief that the worker engaged in the conduct for which he was disciplined.” It is reversible error because an employee can be guilty of a disciplinary offense and still recover under the FRSA “if his filing of an injury report played only a very small role in the railroad’s decision-making process.”
Bottom line? A rail worker must show not only that he believed the conduct or condition constituted a safety hazard, but also that a reasonable person in his position would have believed so. What the railroad may believe is irrelevant.
So when reporting a safety hazard, make sure there is both a subjective and objective basis for belief. Here are earlier posts on good faith under the FRSA. For more on the rights of employees under the FRSA, go to the free Rail Whistleblower Library.