Last month, I wrote about preventing whistleblowing: how do you keep employees from blowing the whistle? My short answer was to listen to what employees are saying about safety problems, investigate and take appropriate actions. This month, I want to focus on whistleblowing protections for employees, at least for those who work for air carriers (Part 121 and 135), their contractors and subcontractors. Protection for other aviation employees, if any, would be covered under state laws and beyond the scope of this article. (But any attorneys who read this, feel free to chime in with any state protections you are aware of.)
First, let me say whistleblowing is not something to do lightly. While I strongly encourage employees to raise safety concerns within an organization, anonymously if necessary, whistleblowing is something that employees need to think through carefully. It can ruin their careers and destroy their lives. It can, and often does, make their work life difficult. In some cases, it even gets them disciplined or fired. It can result in their being “blacklisted” from the industry.
Aviation is a small world and an employee who has blown the whistle is not likely to be viewed in a positive light by any future employer. Whistleblowers are frequently viewed as troublemakers, and who wants to hire a troublemaker? They are rarely welcomed in an organization: a lot of supervisors and managers just don’t want to know that there are issues that could potentially slow down or stop their operation or increase their budgets. To some extent, turning a blind eye to safety complaints can be an understandable human reaction to pressures from management to stay within a budget or to maintain a schedule. Short-term rewards trump the speculative possibility of anything going wrong on that one particular flight. But it’s a human reaction that needs to be resisted to maintain a safe operation.
Whistleblowers who do stand up to unsafe conditions in the face of tremendous risks to their own well-being are to be commended and not punished. And that’s where Congress finally stepped in in 2000 and enacted the Wendell H. Ford Aviation and Reform Act for the 21st Century, better known as Air21, which contains the federal protections for employees who complain of unsafe conditions by employers covered by the legislation. So, while my focus last month was on preventing people from becoming whistleblowers in the first place, here I want to raise the legal and financial ramifications of retaliating against employees who become whistleblowers.
I started thinking about whistleblower protections because in response to last month’s article, a reader asked how I could write about whistleblowers without mention of the AIR21 protections given to aviation employees. That legislation extended federal whistleblower protections to airline employees, their contractors and subcontractors. It prohibits retaliation against these aviation employees when they provide information to their employers or the government relating to safety violations by a U.S. air carrier. This includes both Part 121 and 135 operators and would include, for example, a mechanic working for a Part 145 repair station that is performing maintenance for an air carrier.
The law also provides for significant remedies for employees who are subject to retaliation for disclosing information of unsafe airline activities to their employer or the government. What is a protection for employees can, obviously, be viewed as a punishment for employers. Of course, the purpose of the legislation is not just to protect employees who are retaliated against but also to deter employers from retaliating in the first place. And it does that by providing stiff monetary remedies, including back pay, front pay and compensatory damages for emotional distress caused by the retaliation. And “reasonable” attorney fees. Reasonable can still mean tens of thousands of dollars and even more. I know from NTSB cases that even though attorney hourly rates are capped well below what most attorneys usually charge, the dollar amounts can escalate quickly in a contested case.
The reader who wrote in on this subject attached a recent Department of Labor decision (aviation whistleblower complaints are filed with OSHA, not the FAA) against a Virginia-based charter company that was found to have violated the employee protections of Air21. “Pilots are protected by law when they refuse to fly an aircraft determined to be unairworthy,” said MaryAnn Garrahan, OSHA’s regional administrator in Philadelphia. “Air carriers that retaliate against employees for exercising their rights under AIR21 will be held accountable.” According to OSHA’s factsheet on AIR21, even though the law does not specifically protect employees who refuse to work because of an employer’s safety violation, the Secretary of Labor “interprets this statute to protect refusals to work when an employee has a reasonable belief that his or her work conditions are unsafe, and he or she does not receive an adequate explanation from a responsible official that the conditions are safe.”
As a result of OSHA’s findings in the case against it, “the company was ordered to pay back wages in the amount of more than $140,000 for the period from June 30, 2010, through June 30, 2013. Thereafter, the company will pay at a rate of $797 per week until it has made the complainant a bona fide offer of reinstatement. The company was also ordered to pay compensatory damages in the amount of $75,000. Additionally, OSHA ordered the air carrier to take other corrective action, including expunging the complainant’s termination and any reference to the exercise of his rights under AIR21 from his employment records, and the posting of and providing to its employees information on their AIR21 whistle-blower rights. OSHA also ordered the company to pay attorneys’ fees and interest on the back wages.
The company involved has filed an appeal. This recent decision serves both as a reminder to air carrier employees, contractors and subcontractors of the important protections they have against retaliation for raising safety concerns, as well as a reminder to their employers of the severe penalties available for violations of the law.