Written by attorney Jason M. Zuckerman

Whistleblower Protection in the Airline Industry

Are whistleblowers in the airline industry protected from retaliation? The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21) is a federal law that protects employees who expose air carrier safety violations.

What activities are protected?

An employee engages in protected activity by:

  1. Providing specific information to the employer or the federal government relating to any violation or alleged violation of any order, regulation of the Federal Aviation Administration (FAA) or any other federal law relating to air carrier safety;
  2. Filing a proceeding relating to a violation or alleged violation of air carrier safety rules;
  3. Testifying in a proceeding related to an air carrier safety violation; or
  4. Assisting or participating in a proceeding related to an air carrier safety violation.

Specific examples of protected activity include:

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

What retaliatory acts are prohibited under AIR-21?

AIR-21 prohibits any action taken by an employer which has a negative effect on the employee's terms, conditions, or privileges of employment. This includes intimidation, blacklisting, termination, suspension, demotion, reduction in salary, failure to hire, harassment, and any act that would dissuade a reasonable person from engaging in further protected activity.

What is the burden of proof?

  1. To prevail in an AIR-21 case, an employee must prove:
  2. That she engaged in protected activity;
  3. That the employer knew about such activity;
  4. That the employer subjected her to an unfavorable personnel action; and
  5. That the protected activity was a contributing factor in the unfavorable personnel action.

If an employee successfully proves that his or her protected activity was a contributing factor to the adverse action, an employer may avoid liability if the employer demonstrates by clear and convincing evidence that it would have taken the same adverse action absent the employee's protected activity.

What is the procedure for filing a whistleblower complaint? Employees who believe that they have suffered retaliation for reporting air safety violations can file a complaint with the Occupational Safety and Health Administration (OSHA) within 90 days of the date on which the discriminatory decision has been made and communicated to the employee.

What role does the FAA play in protecting airline whistleblowers from retaliation? When an employee files a whistleblower complaint with the Department of Labor, OSHA will provide the FAA with a copy of the complaint and the FAA typically will conduct an investigation of the safety issues set forth in the complaint. An air carrier who violates AIR-21 regulations may be subject to an FAA civil penalty.

What remedies are available for a prevailing employee? AIR-21 authorizes reinstatement, back pay for lost wages, compensatory damages, litigation costs and attorney fees.

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