Are whistleblowers in the airline industry protected against retaliation?

The AIR21 whistleblower law protects employees in the airline industry against retaliation for raising a concern about air carrier safety.

Since 2005, the AIR21 air safety whistleblower lawyers at Zuckerman Law have represented whistleblowers in the aviation industry in AIR21 whistleblower retaliation claims under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (also known as “AIR21”).

To schedule a consultation with our experienced AIR21 air safety whistleblower lawyers, click here or call us at 202-262-8959.

Proving a Violation of AIR21 Whistleblower Protection Law

To prevail under the AIR21 whistleblower protection law, 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 contributing factor in the employer’s decision to take the adverse action.

A 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 44704 or 44705 FAA certificate holder or a contractor, subcontractor, or supplier of such holder.

Protected Air Safety Whistleblowing Under AIR21

As amended by the 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 AIR21 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));
• disclosing a violation of 14. C.F.R. 91.105(a)(1), which requires crewmembers to be at their stations and vigilant; 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 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

The AIR21 whistleblower protection law 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 can dissuade an employee 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 AIR21, 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 early March 2022, the DOL ordered a private aviation provider to pay $958K 
to a former worker who suffered retaliation for reporting safety concerns. Investigators with the department’s Occupational Safety and Health Administration found that – after a former employee of Pegasus Elite Aviation Inc. in Calabasas reported safety issues that led to an onsite inspection – the company sent a falsified and negative Pilot Records Improvement Act report to the worker’s new employer, violating the whistleblower provision. The report led to the employee’s termination.

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 AIR21 whistleblower 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 issues sanctions to airmen and air carriers for non-compliance with these regulations.

Client Review of AIR21 Whistleblower Protection Lawyer

The following are reviews from airline safety whistleblower clients provided through Avvo:

• I couldn’t ask for a better guy than Dallas Hammer to put the airline’s feet to the fire. I had never heard of AIR21 until I had been retaliated against and educated myself with the help of Zuckerman Law website. Dallas correctly anticipated every move they made and we were in a position to have a very strong case. Dallas negotiated a severance that is far above the norm. I am very pleased with the outcome. Now I can move on with my life with plenty of time to find a better employer.

Top-Rated Airline Safety Whistleblower Protection Lawyers

Before hiring an AIR21 whistleblower protection lawyer for a whistleblower retaliation case, assess the lawyer’s reputation, prior experience representing whistleblowers, knowledge of whistleblower laws and prior results.  And consider the experience of other whistleblowers working with that attorney.

We have extensive experience representing whistleblowers under a wide variety of corporate whistleblower protection laws.  See our client testimonials by clicking here.

• U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.
• Dallas Hammer has extensive experience representing whistleblowers in retaliation and rewards claims and has written extensively about cybersecurity whistleblowing. He was selected by his peers to be included in The Best Lawyers in America® in the category of employment law in 2021 and 2022.
• Described by the National Law Journal as a “leading whistleblower attorney,” founding Principal Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases.  He served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protection laws.  Zuckerman also served as Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government.  At OSC, he oversaw investigations of whistleblower claims and obtained corrective action or relief for whistleblowers.
• Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” (2020, 2018, 2017, 2015, 2009, and 2007), selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2021) and in SuperLawyers in the category of labor and employment law (2012 and 2015-2021), is rated 10 out of 10 by Avvo, based largely on client reviews, and is rated AV Preeminent® by Martindale-Hubbell based on peer reviews
• We have published extensively on whistleblower rights and protections, and speak nationwide at seminars and continuing legal education conferences.  We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Law and SEC Awards Blog, and in 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law.
• Our attorneys have been quoted by and published articles in leading business, accounting, and legal periodicals, including The Wall Street Journal, Forbes, CNBC, MarketWatch, Vox, Accounting Today, Going Concern, Law360 – Expert Analysis, Investopedia, The National Law Review, inSecurities, Government Accountability Project, S&P Global Market Intelligence, Risk & Compliance Magazine, The D&O Diary, The Compliance and Ethics Blog, Compliance Week and other printed and electronic media.

To learn if you have a potential claim, call the whistleblower lawyers at Zuckerman Law at 202-262-8959.