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 a 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”).
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Proving a Violation of AIR-21 Whistleblower Protection Provision
To prevail under AIR21, the 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
AIR21 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.
For example, reporting a violation of the airline’s flight operations manual is protected whistleblowing under AIR21. FAA regulations on airplane safety can be found here.
The complainant need not prove an actual violation of a regulation, order, or standard relating to air carrier safety, as long as the complainant’s belief in a violation is reasonable. Furland v. Am. Airlines, Inc., ARB No. 90-102, ALJ No. 2008-AIR-011, slip op. at 5 (ARB July 27, 2011). Also, the complainant need not convey his reasonable belief in order for it to be protected. See Newell v. Airgas, Inc., ARB No. 16-007, ALJ No. 2015-STA-6, slip op. at 11 (ARB Jan. 10, 2018).
An employee “satisf[ies] the protected activity requirement where (1) the employee’s report or attempted report is ‘related to a violation or alleged violation of an FAA requirement or any federal law related to air carrier safety, and (2) the employee’s belief of a violation is subjectively and objectively reasonable.’” Sewade v. Halo-Flight, Inc., ARB No. 13-098, ALJ No. 2013-AIR-009, slip op. at 7 (ARB Feb. 13, 2015).
Prohibited Whistleblower Retaliation Under AIR21 Whistleblower Law
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.
Subjecting an employee to a 15D psychological evaluation can be an actionable adverse action where it is selectively implemented or utilized in a retaliatory fashion.
Remedies for Airline Industry Workers in AIR21 Whistleblower Protection Cases
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 Aviation Safety 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. The FAA investigates complaints related to air carrier safety and enforces air safety regulations and issue sanctions to airmen and air carriers for noncompliance with these regulations.
Client Review from AIR21 Whistleblower
The following is a review from an AIR21 whistleblower client provided through Avvo:
- I couldn’t ask for a better guy than Dallas Hammer to put the airlines feet to the fire. I had never heard of AIR21 until I had been retaliated against and educated my self with the help of Zuckerman Law website. Dallas correctly anticipated every move they made and we were in position to have a very strong case. Dallas negotiated a severance that is far above the norm. I am very pleased with the outcome. Now I can move on with my life with plenty of time to find a better employer.
Top-Rated Whistleblower Protection Lawyers
Before hiring a lawyer for a whistleblower case, assess the lawyer’s reputation, prior experience representing whistleblowers, knowledge of whistleblower laws and prior results. And consider the experience of other whistleblowers working with that attorney. We have extensive experience representing whistleblower under a wide variety of corporate whistleblower protection laws. See our client testimonials by clicking here.
- U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.
- Both Eric Bachman and Jason Zuckerman served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protections.
- Firm Principal Jason Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law. is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.
- The firm has published extensively on whistleblower rights and protections, and speaks nationwide at seminars and continuing legal education conferences. We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Blog.
- The firm is routinely quoted in the media about whistleblower rights and protections.
- Eric Bachman and Jason Zuckerman served in senior positions at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government. At OSC, they oversaw investigations of whistleblower claims and obtained corrective action or relief for whistleblowers.
To learn if you have a potential claim, call the whistleblower lawyers at Zuckerman Law at 202-262-8959.
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