Courts Clarify Federal Railroad Safety Act Employee Protection for “Good Faith” Safety Reports
Legal Sidebari
Courts Clarify Federal Railroad Safety Act
Employee Protection for “Good Faith” Safety
Reports
October 11, 2022
The Federal Railroad Safety Act (FRSA) contains several provisions that prohibit railroads from
punishing an employee for engaging in certain protected activities, including reporting safety hazards,
cooperating with federal safety investigations, and refusing to violate federal safety rules. The FRSA also
creates a private cause of action enabling railroad workers to sue their employers for money damages and
other relief for violations of these statuary protections.
One of the FRSA’s employee protections—49 U.S.C. § 20109(b)(1)(A)—prohibits railroads from
punishing employees for “reporting, in good faith, a hazardous safety or security condition.” The statute
does not define “good faith,” however, leaving the term ambiguous. In particular, courts have grappled
with whether Section 20109(b)(1)(A)’s “good faith” element requires only that the employee subjectively
believe that a hazardous condition exists (i.e., the employee actually believes the condition is hazardous)
or whether the employee’s belief must also be objectively reasonable (i.e., a similarly situated employee
would reasonably understand the condition to be hazardous). In 2021, two U.S. Courts of Appeals,
contrary to earlier district court rulings, adopted the former view and held that Section 20109(b)(1)(A)
protects a reporting employee who subjectively believes that a hazardous condition exists, regardless of
whether that belief is objectively reasonable. This Legal Sidebar discusses the courts’ rulings, potential
implications for future FRSA cases, and implications for Congress’s use of “good faith” as a statutory
term.
Ziparo v. CSX Transportation, Inc.
In Ziparo v. CSX Transportation, Inc., a train conductor, Cody Ziparo, sued his former employer for
unlawful retaliation under Section 20109(b)(1)(A). Ziparo had reported to the company that his
supervisors created hazardous working conditions by pressuring employees to falsify tracking data to
improve performance metrics. Ziparo did not allege that the falsifications themselves posed a safety
threat, but that employees’ resulting stress and distraction did so. Shortly after this report, a train damaged
Congressional Research Service
https://crsreports.congress.gov
LSB10835
CRS Legal Sidebar
Prepared for Members and
Committees of Congress
Congressional Research Service
2
a switch that, according to CSX’s reports, Ziparo had left misaligned. CSX terminated Ziparo after a
hearing about the switch incident, but also reprimanded his superiors after investigating his complaint.
The district court determined that “good faith” as used in Section 20109(b)(1)(A) contains both subjective
and objective components, such that Ziparo needed to show both that he actually believed that the stress
and distraction caused by his supervisors was a “hazardous safety or security condition” and that this
assessment was objectively reasonable. The district court held that no reasonable jury could find Ziparo’s
view objectively reasonable. The court also separately held that a hazardous safety or security condition
must be a physical condition.
On appeal, the United States Court of Appeals for the Second Circuit disagreed with the district court on
both issues. The Second Circuit looked to dictionary definitions of “good faith” and determined that it is a
subjective standard concerned only with the actor’s state of mind, not with objective reasonableness. The
Second Circuit acknowledged that several other district courts had also interpreted Section
20109(b)(1)(A) to contain an objective reasonableness element, but faulted these courts for relying on
appellate decisions interpreting other whistleblower statutes that contain language absent from Section
20109(b)(1)(A). For example, some of the district courts relied on decisions interpreting the
whistleblower protection provision of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, but that provision
applies where an “employee reasonably believes” that conduct would violate federal laws or regulations.
The Second Circuit contended that the omission of any reasonable belief language in Section
20109(b)(1)(A) is particularly telling because other provisions in Section 20109 contain an express
reasonableness requirement. Sections 20109(b)(1)(B), (1)(C), and (2) protect employees who refuse to
work or to authorize the use of railroad infrastructure because of a hazardous safety or security condition
when the refusal is made in good faith, without reasonable alternatives, and “a reasonable individual in
the circumstances then confronting the employee” would act similarly. Likewise, Section 20109(a)(1)
protects employees for “good faith” acts done to assist “any investigation regarding any conduct which
the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to
railroad safety or security” or abuse of related public funds, if the investigation is conducted by certain
authorities.
The court also concluded that requiring only a subjective belief under Section 20109(b)(1)(A) is
consistent with the overall structure of subsection (b) and with the safety-promoting purpose of the
FRSA. Employees merely reporting a safety concern are protected so long as their belief is genuine. This
broad protection encourages safety reporting while placing a minimum burden on the railroad. Employees
refusing to perform tasks, however, face the higher hurdle of objective reasonableness, reflecting the
escalated burden imposed on the railroad.
The Second Circuit therefore determined that Section 20109(b)(1)(A) plaintiffs need not show that their
concerns were objectively reasonable, although it explained that the reasonableness of the report may still
be circumstantial evidence of the employee’s subjective good faith—that is, a factfinder may be more
likely to conclude that an employee did not actually believe a condition was hazardous if that belief seems
unreasonable. The court also concluded that there is no textual basis to require that a reported “hazardous
safety or security condition” be a physical condition. The Second Circuit thus vacated the district court’s
entry of summary judgment for the railroad and remanded for further proceedings.
Monohon v. BNSF Railway Company
The Eighth Circuit reached a similar result in Monohon v. BNSF Railway Company. Daniel Monohon
worked as a track inspector for BNSF and used a vehicle called a hy-rail, a pickup truck that can switch to
special rail wheels to travel on railroad tracks. BNSF required hy-rail occupants to wear a seatbelt, but did
not consistently enforce the rule. After Monohon’s supervisors reiterated the rule, Monohon expressed
Congressional Research Service
3
concern that wearing a seatbelt while on the tracks could inhibit his ability to bail out of the hy-rail if a
train appeared, leading to his termination. A jury found in favor of Monohon on his Section
20109(b)(1)(A) claim, but the district court granted judgment as a matter of law to BNSF because it
concluded that Monohon’s concern was not objectively reasonable.
For essentially the same reasons as the Second Circuit, the United States Court of Appeals for the Eighth
Circuit held that Section 20109(b)(1)(A) does not require that an employee’s report be objectively
reasonable. The court relied on a dictionary definition of the term “in good faith,” the presence of express
reasonableness language elsewhere in the statute, and its interpretation that broad anti-retaliation
protection for good faith reports aligns with the FRSA’s purpose.
Future FRSA Questions
Although the Second Circuit held in Ziparo that “good faith” in Section 20109(b)(1)(A) does not require
an objectively reasonable belief about a hazardous condition, the court also suggested that factors other
than the employee’s subjective belief in a hazardous condition might be relevant to whether the employee
acted in good faith. In explaining the meaning of “good faith,” the court stated in passing that the
employee also must not “make the report for an improper purpose.” (The Eighth Circuit made no similar
statement in Monohon.)
For example, what if an employee reports what they genuinely believe to be a safety hazard, but does so
for potentially suspect reasons, such as animosity toward a supervisor? Courts and state legislatures have
confronted this question in the context of state whistleblower statutes that protect “good faith” reports.
For example, in 2013, the Minnesota legislature amended the Minnesota Whistleblower Act in part to
eliminate a judicially created requirement that a whistleblower take action with the purpose of exposing
an illegality.
In 2017, the Supreme Court of Louisiana interpreted the Louisiana Environmental Quality Act, which
protects employees who, “acting in good faith,” report conduct that they reasonably believe violates
environmental regulations. The court rejected an argument that an employee’s motivation was relevant to
whether they acted in good faith, limiting the requirement to the employee’s honest belief that a violation
occurred.
While the Ziparo court suggested that a report is not made in “good faith” under Section 20109 if it is
made for an improper purpose, that question was not before either the Ziparo or Monohon courts. The
issue may be contested in future FRSA cases.
The interpretation of “good faith” adopted in Ziparo and Monohon may also raise questions under Section
20109(a)(2), which protects employees for “lawful, good faith” acts done “to refuse to violate or assist in
the violation of any Federal law, rule, or regulation relating to railroad safety or security.” Unlike Section
20109(a)(1)’s protection for assisting an investigation, Section 20109(a)(2) does not contain an express
reasonableness requirement. In Rookaird v. BNSF Railway Company, a divided Ninth Circuit in 2018
rejected the defendant’s argument that the subsection only applies where the refused conduct actually
would have violated a rule or regulation. The district court had determined that the employee’s
subjectively and objectively reasonable good faith belief in a violation was sufficient. The Ninth Circuit
majority affirmed but did not clearly adopt an objective component of “good faith.” The dissent accused
the majority of interjecting a reasonable belief element into the statutory text.
The Ziparo and Monohon courts’ interpretation of “good faith” as not requiring an objectively reasonable
belief therefore may be in tension with the Rookaird decision. Rookaird held that employees need not
show that refused conduct would actually have violated a federal safety or security requirement to be
protected by Section 20109(a)(2). If that is correct and, following the logic of the Ziparo and Monohon
decision, the “good faith” requirement incorporated in Section 20109(a)(2) does not require an objectively
Congressional Research Service
4
reasonable belief, then an employee may be protected for refusing to work as long as they had a
subjective belief that the refused conduct would have violated a federal law, rule, or regulation. That
broad protection for a refusal to act could undermine the structural balance recognized by the Ziparo
decision in Section 20109(b), where mere reporting enjoys similarly broad protection but an employee
must meet objective requirements to be protected for a refusal to perform a task.
Considerations for Congress
The courts’ interpretation of “good faith” in Ziparo and Monohon highlights both the potential utility and
ambiguity of that term. One implication is that Congress can use subjective and objective requirements to
tailor levels of protection to different types of protected conduct. As the Second Circuit explained in
Ziparo, Section 20109(b) promotes safety by providing employee protection, but accounts for the
potential burden of such protections on railroads by escalating the evidentiary burden on the employee as
the burden of the protection action on the railroad escalates.
In situations where Congress seeks to incentivize reporting even further, Congress can protect employees
without a subjective requirement. Congress adopted the employee protection provisions of the National
Transit Systems Security Act of 2007, 6 U.S.C. § 1142, at the same time as those in the FRSA and
followed the same general structure. A “good faith” requirement appears in the equivalent provisions
protecting employees who assist an investigation; refuse to take part in a violation of a federal law, rule,
or regulation; or refuse to take action because of a hazardous safety or security condition. But unlike the
FRSA, the reporting provision in the transit statute does not require public transportation employees who
“report[] a hazardous safety or security condition” to do so in “good faith,” and it therefore appears to
provide broader protections for transit employees making such reports.
Congress can thus employ objective and subjective requirements, or the absence thereof, to balance
competing values and adjust employee protections for different types of conduct. The use of the term
“good faith,” however, may result in ambiguity. If Congress seeks to decrease uncertainty over how
courts will interpret statutory provisions that reference “good faith,” it may define the term for purposes
of those provisions or otherwise clarify in the statutory text what “good faith” requires.
The FRSA’s conditioning of some protections on an employee’s “good faith” is unusual, but not unique,
among federal whistleblower protection statutes aimed at employee protection. One provision of the
Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-22(e), prohibits medical providers
from taking adverse employment action against an employee who “in good faith reported information” to
a patient safety organization directly or via the provider. The Seaman’s Protection Act, 46 U.S.C.
§ 2114(a)(1)(A), also prohibits any retaliation against a seaman who “in good faith has reported or is
about to report” what they believe to be a violation of a maritime safety law or regulation to federal
authorities. Beyond employee protection, other types of protected reporting subject to “good faith”
requirements include reporting alleged horseracing violations and reporting child abuse.
The Ziparo and Monohon cases can also inform Congress’s possible use of the term “good faith” in other
contexts and future legislation. For instance, one version of the proposed American Innovation and
Choice Online Act would prohibit certain technology platform operators from retaliating against any user
“that raises good-faith concerns” with law enforcement about actual or potential legal violations on the
platform or by the operator.
Congressional Research Service
5
Author Information
Alexander H. Pepper
Legislative Attorney
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
LSB10835 · VERSION 1 · NEW