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PHD. MBA. MHS. Type rated on A350, A330, B777, B747-400, B747-200, B757, B767, B737, B727. International Airline Pilot / Author / Speaker. Dedicated to giving the gift of wings to anyone following their dreams. Supporting Aviation Safety through training, writing, and inspiration. Fighting for Aviation Safety and Airline Employee Advocacy. Safety Culture and SMS change agent.

Saturday, February 8, 2020

Lack of FAA Oversight?

Employee protection and the Air 21 Law…

Image result for justice photo

The Air 21 Law is the Whistleblower law more formally known as: The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century.

This law was designed to protect employees from retaliation when they came forward reporting safety concerns to their employers. The name “Whistleblower” implies that the employee is blowing the whistle on their company to the regulatory agency. However, while the law would also protect an employee from reporting to the FAA, that's not what is happening. It appears that employees are receiving retaliation for reporting internally to their company. Mechanics are writing up maintenance concerns, pilots are critiquing substandard training or objecting to flying fatigued, and so much more.

Often, whether the employee wins their Air 21 case or not
is no reflection as to whether or not the company violated federal standards.

Even if the company violates regulations, the employee must prove that the reporting of that violation led to an adverse action such as termination, suspension, or forcing the individual into a psychiatric evaluation. Therefore, when the company alleges the termination was for another reason, the airline may win the Air 21 claim—regardless of the airline’s violation. There is one underlying principle between all Air 21 cases—win, lose, or settle…

Regardless of the results of the Air 21 case,
the company, or management involved,
are not held accountable to their actions under this law.

The administrative law judge (ALJ) rules on four aspects of the case—the substantiation of a violation brought forward in good faith that resulted in an adverse action, with a was a causal link to reporting an adverse action. An employee must win all four aspects. However, what happens when the employee can’t prove causation? What happens if they did not report in a timely manner? Regardless of win, lose or settle, the airline gets away with the action (violation) that started the litigation.

At the onset this is a joint FAA/OSHA investigation. One must wonder how the FAA could take two weeks to investigate the airline they oversee, whereas OSHA takes 2-3 years. OSHA still rules on behalf of the company for the Air 21, regardless if there was a substantiation of an FAA violation. The employee can appeal. Yet, during that appeal even if the ALJ rules on the substantiation of a violation brought forward in good faith that resulted in an adverse action, a lengthy trial may ensue for causation.

Unfortunately, the FAA still doesn’t take action against the airline for the underlaying violations. In contrast, the managers involved are often promoted, rewarding the inappropriate behavior.

Where is FAA oversight?

What can you do about the FAA? If the fox is guarding the henhouse—probably not much. However, if you are an employee who believes you’ve been retaliated against for doing the right thing in the interest of safety, time is of the essence. This law only has a 90-day statute of limitation. You need to know your rights and the law.

While passenger safety may not be protected when the company violates regulations, the employee can be protected. You need an Air 21 expert. If you need assistance, or want to know if you’ll be protected by the Air 21 law, contact Lee Seham at….

The injustices of the world must be fought,
When humans’ lives are at stake.

Enjoy the Journey!
XOX Karlene 

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