Are whistleblowers in the airline industry protected against retaliation?
Yes, an employee of an air carrier or a contractor of an air carrier is protected against retaliation for blowing the whistle on an law or regulation related to air carrier safety. The whistleblower lawyers at Zuckerman Law represent whistleblowers in the aviation industry under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (also known as “AIR-21”).
Proving a Violation of AIR-21 Whistleblower Protection Provision
To prevail, an airline safety whistleblower must prove:
- the employee engaged in protected whistleblowing;
- the employer was aware of the protected whistleblowing;
- the employer took an adverse action; and
- the protected whistleblowing was a contributing factor in the employer’s decision to take the adverse action.
A contributing factor is any factor which, alone or in combination with other factors, tends to affect in any way the outcome of the decision. Circumstantial evidence may include a wide variety of evidence, such as motive, bias, work pressures, past and current relationships of the involved parties, animus, temporal proximity, pretext, shifting explanations, and material changes in employer practices, among other types of evidence.
Once the complainant has proven these four elements, the employer may avoid liability only if it demonstrates by clear and convincing evidence that it would have taken the same adverse personnel action in the absence of the whistleblowing.
Protected Air Safety Whistleblowing
AIR-21 protects whistleblowers against retaliation for:
- Disclosing a violation of an airline safety regulation to their employer or a federal government entity;
- Commencing a proceeding related to the violation of an airline safety regulation; or
- Testifying, assisting, or participating in a proceeding related to the violation of an airline safety regulation.
FAA regulations on airplane safety can be found here.
For example, reporting a violation of the airline’s flight operations manual is protected whistleblowing under AIR21.
Prohibited Whistleblower Retaliation
AIR21 prohibits a broad range of retaliatory acts that have a negative effect on the employee’s terms, conditions, or privileges of employment. This includes intimidating, threatening, restraining, coercing, blacklisting, or discharging a whistleblower.
An adverse employment action is one that would dissuade a reasonable worker from engaging in protected whistleblowing. Suspension without pay is a way to dissuade employees from engaging in AIR21 protected conduct, and is therefore an adverse employment action.
Remedies Under AIR21 Whistleblower Protection Law
Under AIR-21, a prevailing whistleblower can recover:
- Lost wages and benefits;
- Compensatory damages for emotional distress and reputational harm; and
- Attorney fees and litigation costs.
A mechanic who was fired for reporting insufficient maintenance on ambulance helicopters was awarded $485,000 in damages, plus attorney’s fees.
An airline that filed a retaliatory defamation lawsuit against nine whistleblowers was ordered to withdraw its lawsuit and pay $7.9 million in damages to the employees.
In Vieques Air Link, Inc. v. USDOL, No. 05-01278 (1st Cir. Feb. 2, 2006), the First Circuit affirmed a compensatory damages award of $50,000 for mental anguish where the complainant testified that he depleted his savings and struggled to support his wife and two infant children while he looked for a new full-time job following his termination.
How to File an AIR21 Whistleblower Retaliation Action
An AIR-21 whistleblowing retaliation complaint must be filed initially with the Occupational Safety and Health Administration (OSHA) within 90 days of when the whistleblower knew or should have known of the retaliatory adverse action.
In 2015, the FAA and OSHA entered into a Memorandum of Understanding to facilitate cooperation concerning enforcement of the whistleblower protection provisions in AIR21. The DOL and FAA both play a critical role in enforcing the whistleblower protection provision of AIR21. FAA has responsibility to investigate complaints related to air carrier safety and has authority under the FAA’s statute to enforce air safety regulations and issue sanctions to airmen and air carriers for noncompliance with these regulations.
The whistleblower protection provision of AIR-21 provides a strong remedy for whistleblowers in the aviation industry. To learn if you have a potential claim, call the whistleblower lawyers at Zuckerman Law for a free consultation at 202-262-8959, or click here.
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