Protection file

Whistleblower Protection of the Aviation Investment and Reform Law

One of the least talked about laws to protect your next air flight is the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), which prohibits retaliation against airline employees who report safety concerns. Here are three important aspects of the law that every airline employee should know. Speak with an AIR21 lawyer to learn more about your legal options.

# 1 AIR21 whistleblower retaliation cases have an employee-friendly legal standard

AIR21 is a law which is enforced by the Ministry of Labor and which prohibits retaliation against airline employees who complain about airline safety and related issues. One notable aspect of the law is the employee-friendly legal standard that governs allegations of retaliation.

The initial / prima facie case that an employee must prove

To establish an initial / prima facie case of retaliation under AIR21, an employee need only show (1) that he / she engaged in a protected activity; (2) the employer was aware of this activity; (3) the employer subjected them to adverse employment action; and (4) the protected activity contributed to the adverse action. 49 USC § 42121 (b).

The italicized “contributing factor” test above creates a lower standard of proof for an employee to meet compared to many other employment laws. For example, the Age Discrimination in Employment Act (ADEA) enforces a standard of causation “in the absence of” that is more difficult for the employee to prove. A contributing factor, on the other hand, is a factor that, alone or together with other factors, in any way affects the outcome of a decision.

Causality of contributing factors can be established, for example:

  • Close synchronization (temporal proximity) between the protected activity and the harmful action

  • Evidence of hostility towards the protected activity

  • Disparate treatment of the whistleblower compared to other employees following a protected activity

  • Changes in the treatment of whistleblowers by the employer after the protected activity

  • Indicators indicating that the reasons given by the employer to justify the adverse action are a pretext

An AIR21 lawyer can discuss these matters in more detail.

The employer’s “clear and convincing” standard of proof

If the whistleblower makes this demonstration by a preponderance of evidence, then the employer must prove by “clear and convincing evidence” that he would have taken the same action adverse to the employment even if the employee had not. exercised a protected activity. Compared to other employment laws, such as Title VII of the Civil Rights Act 1964, which requires an employer to present (not prove) simply a legitimate and non-discriminatory explanation for its action, the burden of “clear and convincing proof” of AIR21 is much heavier for the employer .

AIR21 Remedies

Under AIR21, a whistleblower can benefit from the following remedies in the event of retaliation:

  1. reinstatement with the same seniority status that the employee would have had had it not been for reprisals;

  2. arrears of wages, with interest; and

  3. compensation for any special damage suffered as a result of the retaliation, including emotional distress, litigation costs, expert witness fees and reasonable attorney fees.

In particular, the damages for emotional distress available under AIR21 are not subject to a cap (unlike other anti-retaliation laws like Title VII and the Americans with Disabilities Act). Discuss your case with an AIR21 lawyer to maximize your potential damages.

# 2 How to file an AIR21 whistleblower retaliation complaint

From 2015 to 2020, the Occupational Safety and Health Administration (OSHA) of the Department of Labor recorded on average about 100 complaints registered per year. To file an AIR21 complaint, an airline employee must contact OSHA and the complaint itself can be submitted in a number of ways:

  • in person or by phone with a local OSHA office;

  • send a written complaint by e-mail, fax, US courier or other delivery service;

  • file the complaint online using this form

Once OSHA receives a complaint, the agency will investigate and determine if retaliation has occurred. After OSHA makes its decision and releases its report, the employee (or employer) can request a full hearing before one of the Department of Labor’s administrative law judges. The administrative judge’s decision can then be appealed to the Administrative Review Board (ARB) of the Department of Labor, and the ARB’s decision can be appealed to the United States Court of Appeals. competent.

It is important to note, however, that an employee does not not have the right to have their request heard by a jury made up of their peers. Rather, it is the administrative judge who decides the case.

# 3 A short statute of limitations / time limit applies in AIR21 cases

A reprisal complaint from an AIR21 whistleblower has a relatively short statute of limitations / time limit: an employee must file their complaint with OSHA within a period of time. 90 days when the retaliation took place. 49 USC § 42121 (b) (1). Failure to file a complaint on time may result in the dismissal of the case. Thus, it is important that an airline employee file a complaint quickly if they believe they have been the subject of retaliation for their whistleblowing activities.

While AIR21 remains a relatively obscure law, the rights of whistleblowers it protects are undeniably important and help keep air travel as safe as possible.