Answer: No. The Federal Rail Safety Act (FRSA) expressly states that your railroad employer cannot discipline or adversely treat you in any way for your good faith refusal to perform unsafe work. The law requires first you show the following:
(A) the refusal is made in good faith and no reasonable alternative to the refusal is available to the employee;
(B) a reasonable individual in the circumstances then confronting the employee would conclude that–
(i) the hazardous condition presents an imminent danger of death or serious injury; and (ii) the urgency of the situation does not allow sufficient time to eliminate the danger without such refusal; and
(C) the employee, where possible, has notified the railroad carrier of the existence of the hazardous condition and the intention not to perform further work, or not to authorize the use of the hazardous equipment, track, or structures, unless the condition is corrected immediately or the equipment, track, or structures are repaired properly or replaced.
Most recently, the attorneys at Harrington, Thompson, Acker & Harrington, Ltd. litigated and won the first known case under this section of the new employee protection provisions of the FRSA. Laidler v. Canadian National, 2014-FRS-00099. The law is clear that an employee cannot be disciplined for refusing to perform unsafe work when his refusal is made in good faith and with satisfying the criteria above. In the Laidler case, an administrative law judge ordered the terminated employee back to work with full back pay, interest and awarded $100,000.00 in punitive damages. In doing so, the judge determined the railroad’s on-property investigation process to be an unfair one-sided “sham.”
To determine whether the underlying facts leading to your railroad discipline may have been protected activity under the FRSA. If so, the discipline could be void and you may be entitled to damages. To make such a determination, you will need an experienced FRSA litigation team on your side. The attorneys at Harrington, Thompson, Acker & Harrington, Ltd. possess that exact type of experience.