The FRSA protects employees from retaliation for “reporting, in good faith, a hazardous safety or security condition.” But what exactly does that mean? In a case of first impression for the Circuit Courts, the Second Circuit analyzes the plain meaning of that statutory language and concludes:

we hold that a railroad employee engages in protected activity under FRSA Section 20109(b)(1)(A) when she reports what she subjectively believes to be a hazardous safety or security condition irrespective of whether that understanding is objectively reasonable.

Ziparo v. CSX Transportation. In other words, a worker does not have to prove both a subjective and objective basis to believe a condition is hazardous. A subjective belief alone is sufficient.

And what constitutes a “hazardous safety or security condition”?  Again applying the plain language of the FRSA statute, the Second Circuit soundly rejects all the district court decisions limiting that term to “physical conditions that are within the control of the rail carrier.” Rather, the Circuit explains why the term is much broader, potentially embracing any work-related condition that may affect the safety of a railroad’s operation:

In sum, FRSA Section 20109(b)(1)(A) protects an employee reporting what she sincerely believes constitutes a hazardous safety or security condition, regardless of whether the railroad or a similarly situated employee would reach the same conclusion or whether the report relates to physical conditions or employment practices that create safety or security hazards.

The Court also held “that complaints of stressful and distracting work conditions may well fall within the scope of hazardous safety or security conditions,” although with the caveat that to qualify such conditions must be generated by or within the control of the railroad, not by an employee’s personal life.

Ziparo is a refreshing decision analyzing and applying the plain meaning of Section 20109’s unique statutory language. This is consistent with the Supreme Court’s approach to statutory interpretation (see for example its recent Bostock decision), and highlights the reversible error of courts applying “various appellate decisions interpreting other whistleblower statutes that” do not contain Section 20109’s specific language.

Bottom line? Rail workers no longer have to provide an objective basis for believing a condition is hazardous, and such conditions are not limited to the physical structure to the railroad. The Court noted this does not impose an unreasonable burden on railroads, because

The FRSA does not require the railroad to take remedial action on the basis of the employee’s report, or even to investigate the reported condition. If the railroad concludes that the report does not really create a safety or security concern, it remains free to dismiss the report entirely. To avoid liability under the FRSA, it need only refrain from punishing the employee making the report.

Ya gotta love that last line: to avoid liability the railroad “need only refrain from punishing the employee making the report.” In other words, just don’t shoot the messenger. What a novel idea! Who knew it was so easy for railroads to avoid FRSA liability? Here is the full decision in Ziparo v. CSX Transportation. For more on the rights of rail workers, go to the free Rail Whistleblower Library.