Torqued: When Do Whistleblower Protections Apply?

 - December 1, 2019, 7:50 AM

With all this talk about whistleblowers these days, it seems like an appropriate time to review what protections are out there for aviation employees, who is covered, and how to ensure receipt of those protections in the event circumstances force you to become a whistleblower. I’ve known and read about a number of whistleblowers over the years and I can assure you, no one ever goes to work to become a whistleblower. It usually ends up being an awful experience, even when the whistleblower knows he or she is doing the right thing for aviation safety. Most start out as employees trying to raise safety concerns to their companies or agencies. When they see their complaints going nowhere, they then may decide to blow the whistle, through established processes, to Congress or the media.

Of course, the national headlines have been filled with the whistleblower—the one from the CIA. But aviation news has also had its own headlines lately, specifically related to the crashes of the Boeing 737 Max in Indonesia and Ethiopia. Crashes, in my experience, have a way of bringing whistleblowers forward. And that has held true for these recent major accidents. It seems that a number of whistleblowers from Boeing have come forward since the crashes, and their allegations are being investigated by, among others, the DOT Office of Inspector General and the Department of Justice.

On top of the Boeing news, the Office of Special Counsel recently issued letters to the President and Congress alerting them that “numerous Federal Aviation Administration (FAA) safety inspectors were not sufficiently trained to certify pilots.” The OSC found that FAA responses to Congressional inquiries regarding these allegations “appear to have been misleading.” The allegations of improper inspector training were disclosed to the Special Counsel by an FAA aviation safety inspector. 

This Office of Special Counsel is an independent federal agency whose main mission is protecting “federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.” FAA employees can file complaints with OSC but they are not required to. The FAA maintains an employee hotline for reporting violations of its regulations, conduct that poses a “high level of risk to aviation safety” and “gross misconduct” by agency employees involving aviation safety. Both the OSC and FAA provide for confidentiality if requested. Not all complaints are entitled to whistleblower protections, so it’s important to do some research before filing a complaint. The DOT Office of Inspector General’s website has an overview of whistleblower protections applicable to DOT employees and its contractors. Complaints can also be filed via the DOT OIG’s hotline. 

Employee Protections

In addition to protections afforded federal employees and federal contractors, some aviation employees are also entitled to protections under federal law. (Some states may also have protection laws, but those protections will vary from state to state.) Employees entitled to federal protections under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century—more succinctly referred to as AIR21—are employees of U.S. air carriers, their contractors and subcontractors who report air carrier safety issues. Contractors are defined in AIR21 as a company that performs safety-sensitive functions by contract for an air carrier. This means that not all air-carrier contractor employees are covered by the protections of this law. Subcontractors are not defined in the law but it would seem to me that, logically, they would have to be performing some safety-sensitive function for their employees to be covered. But the law isn’t always logical and, of course, I’m not a lawyer.

AIR21 protects covered employees from retaliation, discharge, or otherwise being discriminated against for providing information relating to air safety violations to their employer or the federal government. Complaints regarding retaliation or discrimination are made to the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA). According to OSHA’s handy desk reference on AIR21, this includes “testifying or assisting in a proceeding against the employer relating to a violation or alleged violation of any order, regulation, or standards of the Federal Aviation Administration or any other Federal law relating to air carrier safety.” Anyone considering filing a complaint under AIR21 should review OSHA’s desk reference, as it provides information not readily apparent on either the FAA’s or OSHA’s website. For example, according to OSHA, an employee of an uncertificated air carrier would be covered by the protections of AIR21. Also, according to OSHA’s interpretation, a contractor or a subcontractor could be a foreign corporation, as opposed to the requirement for the air carrier to be a U.S. citizen. 

It’s very important that an employee filing a claim with OSHA alleging discrimination or retaliation for reporting a safety issue comply with the statutory time limits of 90 days after the alleged adverse conduct occurred. Of course, any employee who believes he or she has been retaliated against would do well to consult an attorney familiar with whistleblower protection laws, both federal and state. Under AIR21, successful claimants can receive back pay, future pay, compensatory damages for emotional distress caused by the retaliatory conduct, and reasonable attorney fees.

While becoming a whistleblower is not something an employee should take lightly, it is imperative to the safety of the aviation system that employees report safety issues that they become aware of. Today, many aviation entities have Aviation Safety Action Programs—especially the major air carriers and large repair stations—that employees should take advantage of to report safety issues without fear of negative action by the FAA or their employer. Not all reported events are covered by ASAP, so it’s important to know what is and is not covered. For example, if a mechanic reported improperly filling out a maintenance record and the FAA and air carrier determined that it constituted falsification of a record, the mechanic’s certificate could be revoked and his/her employment terminated.

Employees at aviation entities without an ASAP should consider using internal company or external government hotlines—even if done anonymously—to report safety issues. 

If you do not fall within one of these employee categories, you can still report unsafe practices via the FAA’s hotline or the OIG’s, but you will not be entitled to the protections from discrimination or retaliation afforded by AIR21.