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AVIATION WHISTLEBLOWER LEGISLATION
Copyright © 1997 Phillip J. Kolczynski.All rights reserved.

Contents:

Pending Legislation May Affect "Air Carriers"

The Aviation Safety Whistleblower Protection Act of 1997, (S. 480-481; H.R. 915) if passed, may have significant impact on aviation safety or create questionable distractions for aviation businesses. The Bill creates whistleblower protections for "air carrier" employees, and the employees of their "contractors" and "subcontractors." This legislation is written broadly to cover all "air carriers". An "air carrier" is defined in Title 14, C.F.R., Part 1, as "a person who undertakes directly, by lease, or other arrangement, to engage in air transportation."

The new law is designed to protect employees against discrimination by their employer if they provide information to the FAA about aviation safety, file claims or lawsuits concerning aviation safety, or testify in proceedings regarding aviation safety. Bear in mind that operators providing common carriage already have the "highest duty of care" under the law, such that slight negligence may result in liability if the carrier is involved in an accident.

Safety Complaints Protected

Under this new "Safety Act," a person who suffers employment sanctions as a result of a complaint made about aviation safety, is entitled to file a claim supported by evidence with the Department of Labor within six months of the alleged violation. After an investigation and administrative review process, in which the carrier can respond, the Secretary of Labor (presumably through Hearing Officers) will decide whether a violation has occurred. If so, the Secretary of Labor could issue an Order requiring the restoration of the employee's job, benefits, privileges, etc. and provide for payment of compensatory damages to the complainant. The Order can be enforced or appealed in Federal Court.

A real "eye opener" is the provision that the complainant may recover costs and expenses, including attorney and expert witness fees. Attorneys and Expert Witness Fees are not normally recoverable in civil litigation in the United States. This is a distinct employee advantage because in many jurisdictions, aviation employees who are demoted or terminated because of safety complaints, must pay for their own attorney and expert when filing a difficult breach of employment lawsuit against his/her employer for wrongful demotion or termination.

Frivolous Complaints Punished

Frivolous complaints are punishable by an award to the prevailing employer of the employer's reasonable attorney's fees in an amount not to exceed $5,000.00. There is no limit on the damages that can be awarded against an air carrier.

If the Bill is enacted, care must be taken to require that the complaint process and investigations be kept confidential. All submissions to the Department of Labor, under this Act, should be deemed non-discoverable, under exemptions from The Freedom of Information Act, until the Labor Department's administrative process can determine whether the complaints are frivolous. Otherwise, an air carrier's reputation could be irretrievably damaged.

The Act includes the contractors and subcontractors of an air carrier without defining the terms, therefore, it would presumably include all manufacturers, service providers and maintenance facilities who enter into contracts with carriers that involve aviation safety. Time will tell whether there will be sufficient political "push" to ensure this Bill's passage and whether a new generation of "deep throats" will emerge.

Disclaimer: The issues and recommendations discussed in this article are based on hypothetical situations and do not constitute legal advice. My objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.

 

Pending Legislation May Affect "Air Carriers"

The Aviation Safety Whistleblower Protection Act of 1997, (S. 480-481; H.R. 915) if passed, may have significant impact on aviation safety or create questionable distractions for aviation businesses. The Bill creates whistleblower protections for "air carrier" employees, and the employees of their "contractors" and "subcontractors." This legislation is written broadly to cover all "air carriers". An "air carrier" is defined in Title 14, C.F.R., Part 1, as "a person who undertakes directly, by lease, or other arrangement, to engage in air transportation."

The new law is designed to protect employees against discrimination by their employer if they provide information to the FAA about aviation safety, file claims or lawsuits concerning aviation safety, or testify in proceedings regarding aviation safety. Bear in mind that operators providing common carriage already have the "highest duty of care" under the law, such that slight negligence may result in liability if the carrier is involved in an accident.

Safety Complaints Protected

Under this new "Safety Act," a person who suffers employment sanctions as a result of a complaint made about aviation safety, is entitled to file a claim supported by evidence with the Department of Labor within six months of the alleged violation. After an investigation and administrative review process, in which the carrier can respond, the Secretary of Labor (presumably through Hearing Officers) will decide whether a violation has occurred. If so, the Secretary of Labor could issue an Order requiring the restoration of the employee's job, benefits, privileges, etc. and provide for payment of compensatory damages to the complainant. The Order can be enforced or appealed in Federal Court.

A real "eye opener" is the provision that the complainant may recover costs and expenses, including attorney and expert witness fees. Attorneys and Expert Witness Fees are not normally recoverable in civil litigation in the United States. This is a distinct employee advantage because in many jurisdictions, aviation employees who are demoted or terminated because of safety complaints, must pay for their own attorney and expert when filing a difficult breach of employment lawsuit against his/her employer for wrongful demotion or termination.

Frivolous Complaints Punished

Frivolous complaints are punishable by an award to the prevailing employer of the employer's reasonable attorney's fees in an amount not to exceed $5,000.00. There is no limit on the damages that can be awarded against an air carrier.

If the Bill is enacted, care must be taken to require that the complaint process and investigations be kept confidential. All submissions to the Department of Labor, under this Act, should be deemed non-discoverable, under exemptions from The Freedom of Information Act, until the Labor Department's administrative process can determine whether the complaints are frivolous. Otherwise, an air carrier's reputation could be irretrievably damaged.

The Act includes the contractors and subcontractors of an air carrier without defining the terms, therefore, it would presumably include all manufacturers, service providers and maintenance facilities who enter into contracts with carriers that involve aviation safety. Time will tell whether there will be sufficient political "push" to ensure this Bill's passage and whether a new generation of "deep throats" will emerge.

Disclaimer: The issues and recommendations discussed in this article are based on hypothetical situations and do not constitute legal advice. My objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.

About the author. . .

Phillip J. Kolczynski , manages his own law firm in Irvine, California. He has a national practice, concentrating in aviation, product liability and business litigation in federal and state courts. Phil teaches evidence, product liability and aviation law at the Aviation Safety Program, School of Engineering, University Of Southern California. He chaired the 1990 ABA National Institute on Aviation Litigation in Washington, D.C., and has spoken nationally at numerous aviation litigation symposia.

Prior to moving to California in 1983, he was a trial attorney in the Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation Division, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C. Phil graduated from Case Western Reserve School of Law, Cleveland, Ohio, in December, 1976, and attended college at Marquette University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full Scholarship. Before entering law school, he was a Marine Corps Captain and F-4 Phantom Pilot. He is a Commercial Pilot with instrument and multi-engine ratings.

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