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Your Rights Airline Employee Whistleblowers -- Aviation Investment and Reform Act

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The Federal Law referred to as AIR 21, passed in 2000, protects employees and safety related contractors from employer retaliation for reporting air carrier safety violations. If you are an airline, or airline industry employee and you know about safety violations that should be reported, this law prohibits your employer from taking adverse employment action against you as a whistleblower for reporting violations. You may also be protected by AIR 21 for refusing to follow illegal instructions. Read below for more information about what is protected and how to report safety violations.

1. Is there a law that protects me if I blow the whistle?

2. Who is protected by AIR 21?

3. What must be proved to win a case?

4. What conduct is considered to be "protected activity"?

5. Can an employee go too far: is some conduct not protected activity?

6. What if the employer makes a mistake and retaliates against someone who engaged in no protected activity?

7. What is an adverse employment action?

8. How do I prove that the protected activity caused the adverse action?

9. How do I file a complaint?

10. Who enforces the law?

11. When must the complaint be filed?

12. What happens after I file the complaint?

13. What are the remedies available to me?

14. Should I get a lawyer?

15. Where can I get more information?

1. I am an airline employee who is aware that my employer is violating federal law regarding some of its safety practices. Is there a law that protects me if I blow the whistle?

Yes. In 2000, Congress passed the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR 21") 49 U.S.C.  42121, which President Clinton signed into law on April 5, 2000.

If you are afraid of jail, and also afraid of getting fired, you could be between a rock and a hard place. Recognizing this dilemma, Congress created an employee protection, designed to prevent employers from violating federal labor law and retaliating against employees who provide information relating to, among other things, air carrier safety violations. The law itself was designed and passed in recognition that employees themselves could act best to protect the public safety. As Senator John Kerry, a co-sponsor of the initial Senate version of the bill, stated:

Flight attendants and other airline employees are in the best position to recognize breaches in safety regulation and can be the critical link in ensuring safer air travel....Aviation employees perform an important public service when they choose to report safety concerns. No employee should be put in the position of having to choose between his or her job and reporting violations that threaten the safety of passengers and crew Cong. Rec., p. S2855 - March 17, 1999.

The employee protection is modeled on the federal environmental laws (Clean Air, Toxic Substances, Clean Water, Atomic Energy, Solid Waste, Safe Drinking Water and Superfund). Those laws have had special provisions protecting employee whistleblowers since 1972. The basic idea behind these employee protections is that people who help enforce the laws should not suffer retaliation as a result.

The laws protect not only calling legal enforcement authorities, but also refusing to follow illegal orders, objecting to supervisors about violations, and associating with those who blow the whistle. When used, these laws have been effective in protecting employees who expose safety violations.

Congress has used similar procedures to protect truck drivers, nuclear plant employees and corporate fraud whistleblowers. Any of them who take a stand for the law and suffer retaliation should consider whether to file a complaint with the Occupational Safety and Health Administration (OSHA).

2. Who is protected by AIR 21?

AIR 21 protects employees of air carriers (including their contractors and subcontractors) from retaliation for reporting violations. "Contractor" means a company that performs safety-sensitive functions by contract for an air carrier 49 U.S.C.  42121(e).

The definition of "employee" is broad. The Department of Labor will provide protection to hourly workers, supervisors, managers, executives, partners, officers and even those independent contractors who meet the common law definition of "employee" or who are prospective employees. Given the remedial purpose of the law, we can expect that the Department of Labor will use the same broad interpretation that is used for other employee protections Samodurov v. General Physics Corp., 89-ERA-20, D%26O of SOL, pp. 5-7 (11-16-93).

3. What must be proved to win a case?

Before an employee can win a case, that employee must be able to convince the judge that there was

protected activity;

an adverse employment action; and

protected activity caused the adverse action;

4. What conduct is considered to be "protected activity"?

"Protected activity" describes the actions an employee can take and still be protected from retaliation under the law.

The Department of Labor and the courts interpret "protected activity" broadly. For example, calling the FAA is protected activity. So, if the boss gets mad and fires you for calling the FAA, you can make a complaint against that unlawful retaliation. AIR 21 also protects employees who report violations to the employer.

AIR 21 describes the scope of protected activity to include any employee who has:

(1) provided, caused to be provided, or is about to provide (with any knowledge of the employer) or cause to be provided to the employer or Federal Government information relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States;

(2) has filed, caused to be filed, or is about to file (with any knowledge of the employer) or cause to be filed a proceeding relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States;

(3) testified or is about to testify in such a proceeding; or

(4) assisted or participated or is about to assist or participate in such a proceeding 49 U.S.C.  42121(a).

Complaints to the FAA can be made to its hotline at:

1-866-TELL-FAA (1-866-835-5322)

The FAA Headquarters is at:

Federal Aviation Administration
800 Independence Avenue SW
Washington DC 20591
FAA field offices

Protection can begin as soon as the evidence suggests that management thought the worker might be a witness in a future enforcement proceeding. So, filing a grievance, contacting the media, refusing to perform illegal assignments, and other forms of standing up against violations of the law can be protected. Even complaints that are indirect or misdirected may result in protection if they reveal to management the intention to enforce the law. For employees assigned to safety, quality control or enforcement work, doing that work too well is also protected.

However, if the employee has concealed the protected activity from the employer, then an issue might arise about whether the employer knew about it before imposing the retaliatory action. For this reason, some whistleblowers will notify the employer directly, through a means that establishes the date on which the employer received the notice. Certified mail, email, and faxes can all provide evidence of the date of receipt. Sometimes, the employer's investigation or interrogation of an employee can reveal employer knowledge of the protected activity.

The employee is not required to prove the underlying violation. The employee needs only a "reasonable basis" to believe that a violation might have occurred.

5. Can an employee go too far: is some conduct not protected activity?

Yes. If you get into an argument with a supervisor about what is or is not legal on the job, and you punch the supervisor, you are not protected from being fired for punching the supervisor.

The Secretary of Labor has recognized that protected activity may be associated with "impulsive behavior." Employees cannot be disciplined for protected activity so long as it "is lawful and the character of the conduct is not indefensible in its context." A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and ship discipline. If the employee's behavior oversteps the defensible bounds of conduct, the employee can lose the protections of the law. For example, one employee lost after swearing at a supervisor, refusing to change conduct, and daring employer to fire employee.

6. What if the employer makes a mistake and retaliates against someone who engaged in no protected activity?

The victim of mistaken identification as a whistleblower has just as much right to a remedy as the real whistleblower. Otherwise, an employer can chill employee reporting by firing every tenth employee whenever a thought of whistleblowing appears. A complainant only needs to show that the employer thought the employee engaged in protected activity when respondent decided on the retaliation.

7. What is an adverse employment action?

AIR 21 protects whistleblowers from discharge and discrimination with respect to "compensation, terms, conditions, or privileges of employment." Any action that materially affects the value of your job is an adverse employment action. A discharge is clearly adverse. A demotion, cut in pay, denial of promotion (if someone else gets that promotion), or denial of benefits would also be considered adverse. The Department of Labor will also recognize a claim against a "hostile work environment," although courts still disagree about what employer actions would make the workplace sufficiently "hostile." Other employer actions that have been held to be adverse include a refusal to hire or rehire, blacklisting, reduction in work hours, reassigning work, transfer, denial of overtime, assignment to undesirable shifts, reprimands, threats to discharge or blacklist, providing unfavorable reference, damaging financial credit, close supervision, unpleasant assignments, evicting from company housing, and a sudden drop in evaluation scores after the protected activity.

8. How do I prove that the protected activity caused the adverse action?

Causation can be proved either by direct evidence or by an inference.

Direct evidence is evidence that the employer was mad at the protected activity. If you or another witness saw a supervisor spout off about someone reporting a violation, that is direct evidence of the employer's "animus" against protected activity. Similarly, if the employer announces that whoever calls the FAA will be fired, or warns employees against reporting violations, that is direct evidence of retaliation.

However, the Department of Labor recognizes that most employers are smart enough to suppress direct admissions of their motives. So, the Department can find causation based on inferences. For example, if the worker calls the FAA, and you can prove that the employer had an idea about who called, and that worker is fired shortly thereafter, the timing can support an inference that the protected activity caused the discharge. The timing can support an inference of retaliation when it is as long as six months or a year from the employer's discovery of the protected activity.

An inference of causation can also be drawn from an employer's failure to follow normal procedures, use of false evidence, changing explanations, or a pattern of adverse actions after employees engage in protected activity.

9. How do I file a complaint?

The complaint must be filed in writing. The Department of Labor's regulations 29 CFR 1979.103(b) state the form of the complaints as follows:

No particular form of complaint is required, except that a complaint must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations. In drafting the complaint, you need to identify the responsible employer or employers, and the names of individuals who have participated in the retaliation. It is also good to identify the adverse employment actions you believe were the result of the retaliation.

An attorney or union representative may file the complaint on behalf of the employee, so long as it is with the employee's permission 29 CFR 1979.103(a).

10. Who enforces the law?

The complaint may be filed with any office of the Occupational Safety and Health Administration of the U.S. Department of Labor. OSHA prefers to receive complaints at the local office. You can find the address and fax number for the local OSHA office here.

The Administrator's office is at:

Occupational Safety & Health Administration
200 Constitution Ave NW, Rm N3647
Washington, DC 20210
Phone: 202-219-8151
Fax: 202-219-4761
Compliance Programs Fax: 202-219-9187

11. When must the complaint be filed?

The time limit to get your AIR 21 whistleblower complaint to OSHA is ninety (90) calendar days from the date you first learned about management's final decision to impose the adverse action.

For example, say the employer gives the employee a letter saying that the employee will be laid-off for economic reasons 120 days in the future. The employee believes the real reason is retaliation for reporting violations. That employee's complaint must be filed within 90 days of the notice, while the employee is still employed. If the employee waits until the discharge is completed, the employer can move to dismiss on grounds of untimeliness. If the employer's notice is equivocal, the employee may wait for a final decision from the employer. However, pursuing internal or union grievance proceedings does not make the decision equivocal.

The 90-day time limit may be met by the postmark of the complaint, or by fax transmission. In counting the 90-day limit, if the 90th day falls on a Sunday, the complaint must be postmarked or filed by that Sunday. A complaint filed on Monday will be dismissed as untimely. Especially if you are close to the deadline, it is important to send the complaint using a method that allows you to prove that you made the complaint, such as sending the complaint via certified mail or with proof of mailing, or keeping a copy of the fax transmission report. While the OSHA website says that you may file a complaint by telephone, this is not advised, since the complaint would not be made in writing.

The legal doctrine of "equitable tolling" may also apply to extend the deadline. For example, if you were planning to file the complaint, but you were in the hospital on the 90th day, OSHA can accept your complaint if you file it promptly after getting out of the hospital. Also, if you made a good faith attempt to file on time, but you filed in the wrong place, you may be able to file in the right place if you do so with reasonable diligence. Equitable tolling does not benefit the worker who simply did not know what the law provided or required until after the time limit was passed. Additionally, some courts have held that the continuing violation doctrine does not apply to AIR 21 cases.

12. What happens after I file the complaint?

OSHA makes the initial investigation and decision. They interview witnesses on both sides and may prompt the parties to discuss settlement. This procedure makes it difficult to prevail in cases involving credibility disputes. The initial decision is usually made in a few months, but can stretch to the better part of a year or more. A regulation requires a decision in 60 days 29 CFR 1979.105(a). If OSHA takes more than about six months, you could pretend they ruled against you and file the request for a hearing.

Once OSHA issues a decision, either or both sides may file a request for a hearing within thirty (30) days of receiving the decision. Copies must be mailed, delivered, telegrammed or faxed to the Chief Administrative Law Judge and the Administrator, and to the respondent 229 CFR 1979.106(a). Upon filing the request for a hearing, discovery (the process of sharing relevant information in the hands of each party) begins and the OSHA decision carries no weight.

If OSHA determines that the complaint has merit, it is required to issue a preliminary order requiring reinstatement, back pay, compensatory damages, and attorney fees 29 CFR 1979.105(a)(1). If the Department of Labor determines that the complaint was frivolous, then it can award the employer up to $1,000 for its reasonable attorney fees 49 U.S.C.  42121(b)(3)(C).

After the hearing, parties may appeal the recommended decision to an Administrative Review Board (ARB), a three member panel appointed by the Secretary of Labor (SOL). Either party may appeal to the U.S. Court of Appeals from the final administrative decision.

13. What are the remedies available to me?

Successful whistleblower claimants can recover remedies to include:

back pay and benefits - including lost overtime

hiring

promotion

reinstatement

front pay - if reinstatement is determined not to be feasible

compensatory damages - emotional pain and suffering and loss of reputation

other equitable remedies - abatement and injunctions

Remedies also may include payment of:

attorneys' fees

expert witness fees

court costs

tax consequences

interest

Compensatory damages are available for mental anguish, pain and suffering, harassment, and lost future earnings 49 U.S.C.  42121(b)(3)(B)(iii).

"Front pay" may be sought in place of reinstatement, but reinstatement must be ordered upon a finding of wrongful discharge. Still, the courts will award front pay in place of reinstatement in cases where reinstatement is not a "viable option." Complainants have a duty to "mitigate" (reduce the potential amount of) damages, for example, by looking for substitute employment. For more information about how to meet the duty to mitigate damages, see our site's mitigation page.

14. Should I get a lawyer?

It is difficult for most lay people to collect all the useful evidence, organize it into a persuasive story, and comply with all the procedural rules to win a whistleblower case. Some lawyers with experience in whistleblower cases will accept cases even when the client cannot afford to pay regular fees. If the lawyer has enough confidence in the client and in winning the case, the lawyer may accept the case on a contingent basis. The lawyer will trust the judge to award fair attorney fees after the client has won a favorable decision. Clients will benefit from shopping around for a lawyer as soon as possible after the employer's first adverse action. Then the lawyer can help make sure the complaint gets filed on time and at the right place. The lawyer can also help make sure that the most important facts are disclosed in the first statement to the OSHA investigator.

When you shop around for an attorney, look for attorneys who have experience in employment matters. For more information, see our site's attorney resources page.

The Government Accountability Project (GAP) is a national, public-interest organization that provides advocacy and legal support to whistleblowers, and may be contacted as follows:

Government Accountability Project
West Coast Office - Intake Coordinator
1511 3rd Avenue, Suite 321
Seattle, WA 98101
Phone: (206) 292-2850
Fax: (206) 292-0610
Email: intake@whistleblower.org
Intake Application

Still, having a lawyer is not required. You can be represented by a union official, a paralegal, or anyone else of your choosing. Some whistleblowers have won cases representing themselves. Until you have a written agreement with a lawyer for representation, it is your responsibility to make sure the time limits are met in your case.

15. Where can I get more information?

A comprehensive source of information is:

Whistleblower Law: A Guide to Legal Protections for Corporate Employees
by Stephen M. Kohn, Michael D. Kohn and David K. Colapinto.

This book is available from the National Whistleblower Center.

Researchers can access OALJ decisions in this comprehensive database