Aviation

B. Who Is Covered?

AIR21 covers “air carriers,” which are defined as citizens of the United States who directly or indirectly provide air transportation. The Act protects not only employees of air carriers, but their contractors and subcontractors as well. For purposes of the Act, a “contractor” is defined as a company that performs a safety-sensitive function by contract for an air carrier.

C. What Activity Is Protected against Retaliation?

Your employer may not retaliate against you for providing information to or assisting in an investigation by the government or your employer regarding a potential violation of the laws of the Federal Aviation Administration (FAA) or any other federal law or regulation related to air carrier safety. The applicable FAA regulations are available at www.faa.gov.

Examples of protected activity include:

1. Alerting the FAA that an aircraft was being flown past its maintenance threshold;
2. Reporting that aircraft parts in warehouse bins did not contain the FAA required serviceable tag;
3. Disclosing to your employer that maintenance records were falsified;
4. Advocating the implementation of the Advanced Passenger Information System (APIS);
5. Informing flight crew members that an aircraft tire was defective; and
6. Reporting engine vibration, wing slat droop, cracked interior window covers, defective hydraulic reservoir, and missing wing placards.

Unlike ground transportation-related whistleblower statutes that expressly protect employees who refuse to work when conditions violate applicable laws, AIR21 contains no such provision. The Secretary of Labor, however, interprets the statute to provide some limited protection to employees who refuse to work. Namely, an employee is protected if he or she has a reasonable belief that his or her working conditions are unsafe, and he or she does not receive an adequate explanation from a responsible official that the conditions are safe and the employer is not violating any applicable laws or regulations.

Note that under AIR21 you must file a complaint of retaliation with any office of the Occupational Safety and Health Administration (“OSHA”) within 90 days of retaliatory actions by your employer.

D. What Must a Plaintiff Do to Prevail?

A successful AIR21 complaint must prove the following by a preponderance of the evidence:

1. The employee engaged in protected activity;
2. The employer knew of the employee’s reporting/protected activity;
3. The employer subjected the employee to unfavorable personnel action; and
4. The employee’s protected activity was a “contributing factor” to the employer’s decision to take unfavorable personnel action against the employee.

E. What is the Employer’s Burden of Proof?

In order to avoid liability, the employer must demonstrate “clear and convincing evidence” that it would have taken the same unfavorable personnel action against the employee in the absence of the employee’s protected activity.

F. What Retaliatory Acts are Prohibited?

AIR-21 prohibits any unfavorable personnel actions taken by an employer in retaliation for protected activity which have a negative effect on the employee’s terms, conditions, or privileges of employment. “Unfavorable personnel actions” can include, but are not limited to:

1. Termination of employment;
2. Demotion;
3. Denial of promotion;
4. Failure to pay overtime;
5. Failure to hire/rehire;
6. Intimidation or other physically or verbally threatening behavior;
7. Unwarranted discipline;
8. Unwarranted negative performance review;
9. Suspension or other forced leave;
10. Reduction in pay or hours;
11. Denial of benefits;
12. Reassignment that negatively impacts promotion prospects, seniority, or other benefits;
13. Blacklisting; or
14. Alteration of job duties (removal or excessive addition).

G. What Remedies Are Available to a Successful Claimant?

If OSHA finds that the evidence supports your whistleblower claim under AIR21, you may be entitled to remedies that include:

• Reinstatement with previous seniority and benefits
• Back pay for lost wages, with interest
• Compensatory damages
• Other possible relief to make you whole, including attorneys’ fees.

H. What role does the FAA play in protecting aviation whistleblowers from retaliation?

When an AIR21 whistleblower complaint is filed with OSHA, OSHA will provide the FAA with a copy of the complaint. Because the FAA is responsible for enforcing air safety regulations, the FAA will then conduct an investigation of the safety issues set forth in the AIR21 whistleblower complaint. An air carrier that violates AIR21 regulations may be subject to civil penalty.

I. How Do I Decide Whether and How to Report Air Safety Violations?

Whether to report concerns about violations of air safety regulations — and, if so, when, how and to whom — can be a very difficult decision for an employee, as blowing the whistle on an employer’s unlawful practices can be a career-ending move. However, AIR21 provides strong legal protections, and employees who raise these concerns can look to a number of resources for assistance. If you are thinking about reporting such concerns, or if you already have and are facing retaliation, contact the experienced whistleblower lawyers at Katz, Marshall & Banks, LLP for an evaluation of your whistleblower case with no further obligation.