Air Safety Whistleblower Protections Critical at a Time of Heightened Air Safety Risks
Air Safety Risks as Air Travel Resumes
A report recently released by Allianz titled Aviation trends post Covid‑19 identifies significant safety risks in the airline industry, including “rusty” pilots, “air rage”, new routes, new generation aircraft and even insect infestations impacting instrumentation accuracy. Specific risks include:
Dozens of “rusty” pilots notified the Aviation Safety Reporting System about making mistakes after climbing back into the cockpit following an extended hiatus. “Many of the pilots cited rustiness as a reason for the incidents after returning to the skies following months of lockdown. While there have been no reported incidents of out‑of‑practice pilots causing accidents injuring passengers, mistakes reported included: forgetting to disengage the parking brake on takeoff, taking three attempts to land the plane on a windy day, choosing the wrong runway and forgetting to turn on the anti‑icing mechanism that prevents the altitude and airspeed sensors from freezing.”
Insect infestation of mothballed aircraft has resulted in an “alarming trend” in the number of reports of unreliable airspeed and altitude readings during the first flight(s) after some planes have left storage.
A surge of “air rage” and unruly passengers, including sometimes violent resistance to flight crew enforcing the mask mandate.
A shortage of qualified pilots and air crew, which could result in fatigued staff.
Whistleblower Protections for Airline Workers, Including Pilots
Employees in the aviation industry are on the frontline and it is crucial that they can raise concerns to air carriers or the FAA without fear of reprisal. Fortunately, the AIR21 whistleblower protection law protects employees of air carriers from retaliation for engaging in protected whistleblowing, including:
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.
In addition, AIR21 protects an employee for refusing to perform work assignments that the employee reasonably believes would cause them to violate any order, regulation, or standard of the FAA or any other provision of Federal law relating to air carrier safety.
AIR21 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. Even paid administrative leave may constitute an adverse action under certain circumstances. Williams v. American Airlines, ARB No. 09- 018 (Dec. 29, 2010).
Remedies for Aviation Safety Whistleblowers
Under AIR-21, a prevailing whistleblower can recover:
Lost wages and benefits;
Uncapped compensatory damages for emotional distress and reputational harm; and
Attorney fees and litigation costs.
Uncapped compensatory damages can be substantial. In 2020, Judge Morris awarded pilot Karlene Petit $500,000 in compensatory damages for emotional distress, humiliation, and reputational harm. In his decision, Judge Morris found that Delta’s referral of Petit for a mental health evaluation was an adverse action in retaliation for her reporting insufficient maintenance on ambulance helicopters. The referral for a mental health evaluation placed at issue her career and livelihood in that formally questioning a pilot’s mental fitness stigmatizes that pilot in the eyes of the close-knit aviation community.
Air Safety Whistleblower Protection Law: Proving Causation and Exhausting Administrative Remedies
The statute of limitations for filing an AIR21 claim is just 90 days after the alleged retaliatory action. AIR21 whistleblower retaliation claims are filed with OSHA. Following an investigation, OSHA can order relief where there is reasonable cause to believe that retaliation has occurred.
An OSHA memo clarifies that “the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies following a hearing,” and that OSHA can issue a merit finding where an investigation reveals that the complainant could succeed in proving a violation.
The burden for an AIR21 air safety whistleblower to prove causation is extremely low. An AIR21 whistleblower “need not show that protected activity was the only or most significant reason for the unfavorable personnel action, but rather may prevail by showing that the respondent’s reason, while true, is only one of the reasons for its conduct, and another [contributing] factor is the complainant’s protected activity.” Hutton v. Union Pacific R.R., ARB No. 11-091, ALJ No. 2010-FRS-00020, slip op. at 8 (May 31, 2013). Put another way, a trier of fact must find the contributing factor element fulfilled when the following question is answered in the affirmative: did the protected activity play a role, any role whatsoever, in the adverse action?” Palmer v. Canadian National Railway, ARB No. 16-035 (Sept. 30, 2016).