Difference between revisions of "Whistleblower Protection Laws"

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='''Wendell H. Ford Aviation Investment and Reform Act for the 21st Century'''=
='''Wendell H. Ford Aviation Investment and Reform Act for the 21st Century'''=
The AIR21 whistleblower law protects employees in the airline industry against retaliation for raising a concern about air carrier safety.
The AIR21 whistleblower law protects employees in the airline industry against retaliation for raising a concern about air carrier safety.
=='''Proving a Violation of AIR21 Whistleblower Protection Law=='''
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 [https://www.zuckermanlaw.com/clear-convincing-evidence-whistleblower-case/ '''contributing factor'''] in the employer’s decision to take the adverse action.
A [https://www.zuckermanlaw.com/clear-convincing-evidence-whistleblower-case/ 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.
AIR21 protects an employee of a section [https://www.govregs.com/uscode/49/44704 44704] or [https://www.govregs.com/uscode/title49_subtitleVII_partA_subpartiii_chapter447_section44705 44705] FAA certificate holder or a contractor, subcontractor, or supplier of such holder.
=='''Protected Air Safety Whistleblowing'''==
As amended by the [https://www.zuckermanlaw.com/wp-content/uploads/Aircraft-Certification-Safety-and-Accountability-Act.pdf Aircraft Certification, Safety, and Accountability Act], AIR21 protects whistleblowers against retaliation for:
*Disclosing a potential violation of any FAA order, regulation, or standard to an employer or the federal government;
*Commencing a proceeding related to a potential violation of an airline safety regulation; or
*Testifying, assisting, or participating in a proceeding related to a potential violation of an airline safety regulation.
Examples of protected disclosures include:
*reporting a violation of the airline’s flight operations manual;
*disclosing that an aircraft is not in airworthy condition;
*identifying falsified FAI documentation (a violation of 14 C.F.R. §21.2(a));
*opposing a violation of 14  C.F.R.  § 135.267(c), which limits pilots that conduct Part 135 operations from working more than 14 hours of duty  time;
*reporting conduct that would result in “operating an aircraft in a careless or reckless manner so as to endanger the life or property of another”;
*reporting the use of an unsuitable part (a violation of  14 C.F.R. §3.5(c)(2)); and
*reporting that a pilot failed a line check, i.e., which triggers a requirement upon the carrier not to utilize the pilot until the pilot passes the line check.
FAA regulations on airplane safety can be found [https://www.faa.gov/regulations_policies/faa_regulations/ here].
“As a matter law, an employee engages in protected activity any time [h]e provides or attempts to provide information related to a violation or alleged violation of an FAA requirement or any federal law related to air carrier safety, where the employee’s belief of a violation is subjectively and objectively reasonable.” ''Sewade v. Halo- Flight, Inc.'', ARB No. 13-098, slip op. at 7-8 (Feb. 13, 2015).  The “complainant must prove that he reasonably believed in the existence of a violation,” which entails both a subjective and an objective component. ''Burdette v. ExpressJet Airlines, Inc.'', ARB No. 14-059, slip op. at 5 (Jan. 21, 2016).
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).
=='''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.
The DOL ARB has held “that the intended protection of AIR 21 extends beyond any limitations in Title VII and can extend beyond tangibility and ultimate employment actions.”  Williams v. American Airlines, ARB No. 09- 018, slip op. at 10-11 n.51 (Dec. 29, 2010)).  The ARB views “the list of prohibited activities in Section 1979.102(b) as quite broad and intended to include, as a matter law, reprimands (written or verbal), as well as counseling sessions by an air carrier, contractor or subcontractor, which are coupled with a reference of potential discipline.” Williams, ARB No. 09-018 at 10-11.  For example, “even paid administrative leave may be considered an adverse action under certain circumstances.” Id. at 14 (emphasis in original) (citing Van Der Meer v. Western Ky. Univ., ARB No. 97-078, slip op. at 4-5 (Apr. 20, 1998) (holding that “although an associate professor was paid throughout his involuntary leave of absence, he was subjected to adverse employment action by his removal from campus)).
Remedies for Airline Industry Workers in AIR21 Whistleblower Protection Cases
Under AIR-21, a prevailing whistleblower can recover:
Reinstatement;
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 a decision finding that Delta violated the anti-retaliation provision of the AIR21 whistleblower protection law, Judge Morris awarded pilot Karlene Petit $500,000 in compensatory damages for emotional distress, humiliation, and reputational harm.
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 Claim
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.


='''Surface Transportation Assistance Act'''=  
='''Surface Transportation Assistance Act'''=