Point of Law: Options for Whistleblower Pilots
If a charter pilot gets fired for repeatedly pointing out safety issues to the director of operations, does the pilot have any legal remedy? In the United States, the answer under state law depends on the state and is probably a definite “maybe.” However, there is federal law aimed precisely at the issue.
The law applies to “air carriers” so it is not aimed at 14 C.F.R. Part 91. The law prohibits “discrimination” by an air carrier against an employee with respect to compensation, terms, conditions or privileges of employment because the employee:
(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 aviation safety under this subtitle or any other law of the U.S.;
(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 aviation safety under this subtitle or any other law of the U.S.;
(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.S. § 42121(a)
What does this mean in the real world? A charter company cannot fire a pilot for honestly reporting maintenance squawks. This is a clear benefit to air safety. But the law’s impact could go far beyond this goal. As written, the law prohibits firing or suspending an employee who was about to complain to the carrier that allowing Cub Scouts to raise money by cleaning a hangar violates OSHA regulations or federal child labor laws.
What does an air carrier employee do if he or she believes that the air carrier has discriminated against the employee in violation of the whistleblower provisions? Within 90 days of the discrimination (termination, suspension, pay cut, etc.), the employee must file a written complaint with the Secretary of Labor.
Upon receipt of such a complaint, the Secretary of Labor shall notify, in writing, the employer and the FAA of the filing of the complaint, of the allegations, of the substance of evidence supporting the complaint, and of the employer’s rights during the government investigation.
The Secretary of Labor has 60 days to conduct an investigation and make a preliminary finding and order. During that 60-day period, the Secretary of Labor will give the employer an opportunity to submit to the Secretary of Labor a written response to the complaint and an opportunity to meet with a representative of the Secretary to present statements from witnesses.
In order for an investigation to move forward, the complaining employee must show that his or her whistle blowing (or intent to) was a contributing factor in the unfavorable personnel action.
Even if the employee can show that the whistle blowing contributed to getting fired, no order will be issued against the employer and the investigation will end if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of the whistle blowing. Things also grind to a halt if the employee deliberately violated law without any direction to do so by the employer.
If the Secretary of Labor finds reasonable cause to believe the complaint against an employer, the government shall issue a preliminary order to the employer to do the following:
(i) take affirmative action to abate the violation;
(ii) reinstate the complainant to his or her former position together with the compensation (including back pay) and restore the terms, conditions and privileges associated with his or her employment; and
(iii) provide compensatory damages to the complainant.
Either side may request a hearing within 30 days of the preliminary order. If neither side requests a hearing, the order becomes final.
If the matter proceeds to a hearing, the Secretary of Labor must issue a final order within 120 days following the hearing. At any time prior to the issuance of the final order, there can be a three-way settlement of the matter between the employee, employer and the government. In other words, the statute does not allow the employer and employee to work out an agreement without the input and knowledge of the government.
If an employee wins and an order is issued, the Secretary of Labor, at the request of the employee, shall assess against the employer a sum equal to the aggregate amount of all costs and expenses (including attorneys' and expert witness fees) reasonably incurred, as determined by the Secretary of Labor, by the employee for, or in connection with, the bringing the complaint. However, if the employer wins and shows that the complaint was frivolous, the most that the government will make the employee pay for the employer’s attorney’s fees is $1,000.
There could be one more step—the Court of Appeals. The employee or employer may obtain review of a final order in the United States Court of Appeals for the circuit that the violation, with respect to which the order was issued, allegedly occurred or the circuit where the employee resided on the date of such violation. The petition for review must be filed not later than 60 days after the date of the issuance of the final order of the Secretary of Labor. Unlike the Labor Department, the court, in issuing any final order under this law, may award costs of litigation (including reasonable attorney and expert witness fees) to any party if the court determines such award is appropriate. The $1,000 cap on attorney’s fee awards paid by employees to employers does not apply to federal court proceedings.
While this statute is federal law, labor law cases typically involve both state and federal issues. If you have been fired from an air carrier because you were a safety whistleblower, you need to work with a local labor law firm because of the complexity of state and federal law that may apply to your case.
This is Kent Jackson's Point of Law column in BCA. He can be reached at email@example.com.