iIn light of the recently reported problems resulting in significant damage of a Boeing 737 MAX 9 aircraft on Alaska Airlines Flight 1282, we believe that information about the U.S. Department of Transportation’s Federal Aviation Administration (“FAA” or “the Agency”) Voluntary Safety Reporting Program (“the Program”), may help individuals in the aviation industry who have questions about their protections as whistleblowers under the law.
This Program was created in response to two major technical issues resulting in the crashes of Boeing 737 MAX airplanes in 2018 and 2019. The FAA announced the Program to enable the more than 7,000 professionals in its Aviation Safety office to report safety-related concerns confidentially and without fear of disciplinary or enforcement action.
While investigations about the exact circumstances of the recent Alaska Airlines Flight 1282 incident are still ongoing, it has been reported that a large portion of the Boeing 737 MAX 9 aircraft broke off the airplane in midair shortly after takeoff. The plane then made an emergency landing. There were no fatalities, though rapid decompression of the cabin damaged the interior of the plane and caused a loss of property. The FAA has since ordered the inspection of 171 MAX 9 planes, which has led to the discovery of similar technical flaws in that plane that led to the 737 MAX-9 damage to Flight 1282.
Submitting Safety-Related Complaints Through the FAA’s Voluntary Safety Reporting Program
According to the FAA, its Safety Reporting Program “allows the [A]gency to address safety sensitive issues that may otherwise have gone unnoticed due to fear of repercussion.” The order establishing the Program, Aviation Safety employees can submit safety-related complaints through the Program online. Complaints are reviewed by the Program’s Event Review Team (“ERT”) and either accepted for investigation or, if the complaint is outside the Program’s purview, referred to the appropriate FAA office for further handling. At the conclusion of its investigation, the ERT can (1) issue a Corrective Action Request to the appropriate office providing recommendations for resolving the matter; (2) in instances where a report “highlights the need for…training…to resolve proficiency issues,” assign individualized training to the complainant; or (3) decline to take corrective action. The ERT may reconsider a decision to decline corrective action if additional information becomes available that either increases the risk reported or identifies the matter as “systemic.”
Protecting Aviation Whistleblowers from Retaliation
As the FAA acknowledged in the order establishing the Program, the Program’s success “depends on its ability to maintain confidentiality”: if employees fear retaliation, they will not come forward. Employees’ names and other identifying information are redacted from complaints prior to review by the ERT, subject matter experts, and the Executive Board, or posting to the Program’s website. Redacted information will be shared only when required to gather additional contextual information, and in that case limited to those who have a “need-to-know.” ERT members, analysts, and any other individuals with access to confidential Program information also are required to sign confidentiality and non-disclosure agreements obligating them to keep that information confidential.
Unfortunately, whistleblowers do not always remain anonymous, and those whose identities are revealed during or after an investigation may face job-related retaliation because of their reports. But FAA employees who experience retaliation for reports they make through the Program may be entitled to relief. For example, they can file a complaint for retaliation with the U.S. Office of Special Counsel (“OSC”) and, if OSC has reasonable grounds to believe an adverse personnel action is retaliatory, it can delay the action. If OSC concludes after an investigation that the action was retaliatory, it can seek corrective or disciplinary action on behalf of the employee. FAA employees who experience retaliation for reports they make through the Program also may hold legal claims under the federal Whistleblower Protection Act, 5 U.S.C. § 2302 et seq., which provides for monetary relief including back pay and compensatory damages for emotional distress. FAA employees experiencing retaliation should consult with an employment attorney to learn more about filing a complaint with OSC or seeking monetary relief under the Whistleblower Protection Act.
