FEDERAL AVIATION ACT WHISTLEBLOWER PROTECTION PROGRAM 49 USC 42121 Jennifer A. Coyne United Air Lines, Inc. Whistleblower. An employee who refuses to engage in and/or reports illegal or wrongful activities of his employer or fellow employees Employer retaliation against whistle blowers is often statutorily prohibited. Black s Law Dictionary at 1596 (6 th Edition 1990). 1 I. BACKGROUND Many federal and state statutes protect employees who expose an employer s conduct that could be harmful to the public s health or safety the whistleblower. The purpose behind most of these statutes is to encourage whistleblowers to assist the government in enforcing various laws and protecting the public interest. Many of these statutes also provide a private right of action to whistleblowers in the event they face retaliation from displeased employers. However, the aviation industry historically did not have any statute to protect whistleblowers on air safety or FAA issues. Instead, air carrier employees usually brought whistleblower complaints in state court under a variety of state whistleblower statutes or through tort claims. The Wendell H. Ford Aviation Investment and Reform Act for the 21 st Century ( AIR 21 ) extended whistleblower protection into the aviation industry. This statute was enacted in April 2000 and contained a new whistleblower protection program for airline and airline subcontractor employees. The statute essentially prohibits a carrier or 1 Interestingly, the previous edition of Black s published in 1979 does not have any reference or definition of whistle blower definition whatsoever. 1
airline subcontractor from discharging or otherwise discriminating against any employee who has: (1) provided information about any violation of Federal law relating to air carrier safety; (2) filed a proceeding relating to any violation of Federal law relating to air carrier safety; (3) testified in such proceeding; or (4) assisted or participated in such a proceeding. 2 The Department of Labor has delegated enforcement of this statute to Occupational Safety and Health Administration ( OSHA ). 3 OSHA already enforces numerous other whistleblower statutes in other industries including nuclear energy, environmental and transportation. 4 II. ADMINISTRATIVE PROCEDURES AND SUBSTANTIVE REQUIREMENTS UNDER THE ACT An employee who feels s/he has been discharged or discriminated against due to reporting a violation of air carrier safety rule or regulation must file a complaint with OSHA within 90 days of the violation. 5 OSHA must then notify in writing both the party named in the complaint and the Administrator of the FAA of the complaint. 6 2 3 4 5 6 See 49 USC 42121(a)(1) to (4). Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for Occupational Health and Safety, 65 Fed. Reg. 50017 (August 16, 2000) The Department of Labor Office of Administrative Law Judges Law Library has an extensive collection of ALJ whistleblower decisions from several industries at http://www.oalj.dol.gov/libwhist.htm. 49 USC 42121(b)(1) 2
Within 60 days of receiving the complaint, and after the party named in the complaint has an opportunity to respond (including an opportunity to present witness statements), OSHA must conduct an investigation and determine whether there is reasonable cause to believe a violation has occurred. 7 OSHA will not conduct this investigation if the complainant cannot make a prima facie showing that his/her whistleblowing conduct was a contributing factor in the unfavorable personnel action. 8 OSHA also will not conduct an investigation, despite the employee s prima facie case, if the party named in the complaint can demonstrate, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action regardless of the allegedly protected behavior. 9 If OSHA does conduct an investigation and determines there is reasonable cause to believe a violation has occurred, OSHA may issue a preliminary order requiring the carrier to: (i) take affirmative action to abate the violation; (ii) reinstate the complainant to his/her former position with back pay; and (iii) pay compensatory damages. 10 The party alleged to have committed the violation has 30 days to file objections to this preliminary order and request a hearing on the record. 11 If a hearing is not requested in this 30-day period, the preliminary order is considered final. 12 If a hearing is held, OSHA 7 8 9 10 11 49 USC 42121(b)(2)(A) 49 USC 42121(b)(2)(B) 49 USC 42121(b)(2)(A) and 42121(b)(3)(A) 49 USC 42121(b)(2)(A) 12 3
must issue a final order within 120 days of the conclusion of hearing. 13 OSHA may order attorneys fees and costs against the employer. 14 OSHA may also award attorneys fees up to $1,000 to an employer if it determines that a complaint was frivolous or brought in bad faith. 15 An employer may appeal a final order to a United States Court of Appeals. 16 III. NOTABLE PROVISIONS OF THE STATUTE This statute has several provisions that may differ from a practitioner s usual expectation for a whistleblower statute. First, the statute protects employees of both a carrier and a carrier s subcontractor. Second, the statute protects conduct in which the employee is about to engage. Thus, the employee does not have to actually perform the protected conduct, s/he merely has to be about to do so which is difficult to disprove. 17 Third, after an initial investigation, but before an evidentiary hearing, OSHA may determine there is reasonable cause to believe the complaint has merit and order the airline to abate the alleged violation and reinstate the complainant with back pay. This is very unusual relief for an investigative stage and poses a significant risk of third party interference in carrier disciplinary decisions. Most other whistleblower statutes do not have such a significant grant of authority to the enforcing agency and none before a formal, evidentiary hearing is held. Finally, the statute provides for attorneys fees and costs if a complaint is upheld and does not prevent reinstatement pending appeal. 13 49 USC 42121(b)(3)(A) 14 15 16 17 49 USC 42121(b)(3)(B) 49 USC 42121(b)(3)(C) 49 USC 42121(b)(4)(A) The statute, however, does contain language which requires employer knowledge for an employee who is about to provide information or about to file a proceeding. 4
IV. CARRIER GUIDANCE Most carriers already have the internal policies and procedures in place that will ensure they will not run afoul of this Whistleblower Protection Program. Obviously, the most important protection is a commitment to a safety-first work environment and effective procedures for addressing safety concerns. In addition, zero-tolerance policies for discrimination and/or retaliation, along with formal complaint procedures for employees to bring claims of unfair treatment, should also prevent whistleblower claims. As always, carriers should also be sure to continue to carefully document reasons for employment decisions. Finally, carriers should work closely with labor unions to continue both parties commitment to safety, ensure the grievance process highlights employees safety concerns and make sure that open channels of communication exist between the union and company on safety-sensitive matters. V. CONCLUSION The FAA Whistleblower Protection Program has the potential to increase whistleblower complaints in the airline industry. With its clear path for complaints as well as the opportunity for the preliminary relief of reinstatement and attorney s fees, it will be an attractive vehicle for employees to use when challenging an adverse employment action. The best guidance for carriers operating under this new statute is to remain committed to safety-first work environments, encourage prompt and thorough resolution of safety complaints and support zero-tolerance policies for discrimination, harassment and retaliation. 5