How Effective is the AIR 21 Law?
There is no greater threat to aviation safety
than retaliation against frontline airline workers
for bringing safety concerns forward.
Airline employees are encouraged to report safety concerns. However, with the threat of retaliation looming overhead, they often look the other way. Many also don't know of the laws available to protect them. Many pilots think that the arbitration process is the only resource. Something they are told they must follow. But not always, and not when retaliation results from reporting safety concerns, calling in fatigued, calling in sick etc.
There is a law specifically enacted to protect the airline employee -
AIR 21. As a matter of fact, this law was recently extended to aircraft manufacturer employees. While the AIR 21 is a huge step above the arbitration process to protect employees, there are some concerns with the law that should be addressed in the New Year. I am going to make an effort to do so, and would like your support to help enact this much needed change to shift the balance back toward the employee and passenger safety.
Arbitration and Justice
During the arbitration process, the airline and union are joint parties in the action and the arbitrators are selected and compensated by both the airline and the union. Therefore grievants involved in this process have their cases adjudicated by arbitrators who are nothing but businessmen in a constant search of their next "periodical appointment", which is considered to be an anathema of the judicial process by our Founding Fathers:
That inflexible and uniform adherence to the right of the constitution and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointment, however regulated, or by whomsoever made, would in some way or other be fatal to their necessary independence.
The Federalist Papers No 78
During an arbitration process, rulings often become a business decision and the grievant can expect a measure of rough justice because the arbitrator's bread is buttered equally by two parties - the employer and the union. Justice in the arbitral process is based upon those periodical appointments and fatal to the necessity of independence. For this very reason, and in order to protect the traveling public, the Wendel H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21) was signed into law on April 5, 2000.
AIR 21 Statute
The AIR 21 statute includes a whistleblower protection provision within the Department of Labor complaint procedure.
While this process was removed from a businessman basing his decision on his financial livelihood to the impartial judicial system, the process appears to slant in favor of the airline, and not the employee. The AIR 21 protection therefore becomes a placebo of safety if the employee is unaware of the challenges within. It's also rare that the employee will take on an airline, even if they know about the law, if management is adamant about burying the employee. Even if the employee pursues, survives, and wins after years of pain, nobody really wins because the toll on the reporting employee is so huge, and the law does not provide for the airline to become accountable.
One judge mandates the airlines to communicate the ruling to all employees. This requirement assists with accountability that is not built into the law. These trials are also open to the public, and everything in the trial becomes public knowledge, in the interest of safety. However, employees are bound to silence because of airline social media policies that protect their transgressions from the public. Safety becomes a game of chess. When the airline is blatantly in the wrong, management uses shareholder profits to appeal. Safety continues to twist in the wind while years of litigation continue.
Management believes in plausible deniability, but I believe knowledge is power to create change. Therefore, I want every employee to understand the AIR 21 law, the protections and the limitations, and to not fear reporting safety concerns.
As previously written in the February 8, 2020 post, "Lack of FAA Oversight", the AIR 21 statute includes for prongs that must all be met in order to prevail in an AIR 21 case:
- Substantiation of a violation,
- the report must be brought forth in good faith,
- an adverse action is felt after the reporting event, and
- there must be a causal link between the reporting and the adverse action.
Protected Activity
Protected activity is a violation of a federal standard. However, airline employees are required to be proactive to mitigate risk. Safety Management Systems (SMS) were designed to mitigate risk in order to improve safety with information sharing in a retaliatory-free environment. This was an effort to solve a problem before the accident occurred. If we see something, we are required to say something.
Management is also required to follow the
ICAO risk matrix to determine when to take action on a reported event. Therefore, even if the internal report to the company is something that is not specifically a Federal Law, but the employee identifies the current process to be unsafe, and the airline "should" address it per the ICAO risk matrix, the employee is required to report it. Unfortunately the AIR 21 stature has yet to identify the component of a reporting culture required in a safety culture, the foundations of an SMS, to qualify on its own as protected activity. The 2000 AIR 21 statute must be brought up to date with the 2018 Federal SMS mandate.
Imagine an employee being retaliated against for reporting his concerns for lack of training for the event that took down AF447, yet after the accident the reasons the plane crashed were precisely what that pilot had reported. After the fact, the training became law. The employee should have been protected for bringing that information forward prior to the accident, and prior to the federal mandates of training. Yet, at this time they are not.
SMS
On January 7, 2015, FAA Administrator Michael Huerta described SMS as "an organization-wide approach to mitigating risk in airline operations." Huerta also issued the final regulation that required most U.S. passenger and cargo airlines to implement a safety management system (SMS) as of January 2018. Perhaps if we were able to speak to Mr. Huerta today, we could query him on his intent of risk mitigation regarding SMS and a reporting culture in relation to the AIR 21 law. However, despite numerous attempts to speak to Mr. Huerta and convey concerns, and to request his support to included the mandate of a reporting culture to become a protected activity, he remains unapproachable.
Statute of Limitations
Unfortunately the employee must file the AIR 21 complaint within 90 days of the adverse action. This is the shortest accrual date for a statute of limitations of any law. Most employees aren't even aware this law exists, and they default to their union process in hope of protection. Shame on the union's legal team for not filing the AIR 21 complaint on the employee's behalf, or mentioning this protection is available. Instead, the employee begins the lengthy arbitral process receiving false hope that they will be protected through the arbitration process. Unfortunately, by the time the employee realizes the union process is a futile attempt to get their job back, they have lost their rights due to exceeding the 90-day statute of limitations.
Why only 90-days to protect the traveling public?
When airline management knowingly and falsely forces a pilot into a psychiatric evaluation and pays a doctor to create a false diagnosis, or terminates an employee with false charges because they reported a safety violation to their management team, is that not fraud? However, fraud for anything other than retaliation for reporting safety has a 3-10 year statute of limitation.
The Process
Under the AIR 21 statute, the FAA and OSHA begin independent investigations. The problem begins with the OSHA investigator lacking knowledge regarding aviation safety. The second problem is the length of time the OSHA investigation takes, which has been noted to be up to five years. At the end of the day, OSHA most often rules in favor of the airline. Why does OSHA have control over the FAA? Perhaps the NTSB should become involved. However, I am familiar with one case in which OSHA ruled in the pilot's favor after 3.5 years, but then the company appealed and two-years later it went to trial. Then a two year appeal. This pilot was without a paycheck the entire time.
In another case, the FAA issued an airline a notice of violation for violating FAR 117, improper scheduling due to not providing adequate crew rest. Yet, a year later the OSHA Investigator still ruled in favor of the airline. How is that even possible?
Attorney
Lee Seham, an AIR 21 legal expert, found a workaround to this taxpayer-funded excessive OSHA delay. He understands that employees who have been unjustly removed from duty deserve immediate justice. They cannot afford years without a paycheck while waiting for OSHA. He takes the immediate loss with OSHA, then appeals. This enables the employee to take this from the hands of OSHA and go directly to court. However, in most cases the airlines are amicable to a resolution and settle without going to court. Until they aren't.
The Judicial Procedural Process
"The scales of justice often, in my head, are unbalanced.
And so my job is to try to balance out those scales."
Letitia James
Attorney General NY
When the airline decides to use the stockholders' wealth to bury the employee, the balance of justice shifts to the airline. An airline utilizes more than their staff attorneys, they go outside and employ top legal entities, paying thousands of dollars per hour. Their expense is unlimited, while the shareholders are kept in the blind. Resources spent to pay doctors to remove pilots are categorized as vendors. Managers that should be running the airline are now spending time to manipulate the facts and create pretext against the employee. The extraordinary legal fees are buried with business as usual.
Damages
If the employee is successful, this law allows the employee to receive "reasonable" attorney fees. They also get their job back, their back pay, and compensatory damages. Compensatory damages are intended to compensate the employee for pain and suffering. Whereas punitive damages are awarded to "punish" the wrongdoer. In civil cases punitive damages are allowed if the defendant displayed an intent to cause harm. Unfortunately there are no punitive damages in the AIR 21 statute.
If the airline intentionally retaliated to discredit and bury the reporting employee, utilized airline resources, perhaps millions, to include multiple executives' time, and premeditated a false mental health diagnosis and perhaps paid a doctor 20 times the normal fee for a false mental health diagnosis - one would think this would constitute an intent to cause harm. However, this law only allows for compensatory damages regardless of the intent to harm an individual.
Title VII complainants, on the other hand, are awarded punitive damages if the employer engages in discriminatory behavior with malice or reckless indifference to federally protected rights. Gender discrimination statute of limitations also allows for 180-300 days to report. Therefore, in the eyes of the AIR 21 statute, gender discrimination appears to be a higher priority than passenger safety. Despite, 346 people being killed in the MAX 737 crashes because Whistleblowers feared coming forward, and nobody was held accountable to training and manufacturing, not even the FAA. Where is accountability?
Punishment is not for revenge,
but to lessen crime and reform the criminal
Elizabeth Fry
Lack of Accountability
The AIR 21 statute does not allow for naming individuals for their actions, therefore there is no accountability. The law only allows for naming the airline. However, the airline is not at fault, the managers and executives who are placing passengers' lives at risk, funded by the shareholder's profits, are responsible for the behavior.
When an employee files an AIR 21 complaint, the managers and executives involved are allowed to continue with business as usual until the ruling - in some cases 4 to 6 years out. Maybe longer. And during this time, despite the premeditation with an intent to harm, these managers and executives are promoted and continue harming others. Did I state until the ruling? Please accept my apology.
They are allowed to continue on as if nothing ever happened, even after a ruling for the employee, because nobody is named in the lawsuit. If the highest level executives are involved, they won't take action upon themselves. Despite policy violations, federal violations, intent to harm, false testimony in court, and a "ruling" that names the individuals for their inappropriate behavior, these managers are still allowed to conduct business as usual. They can obtain high-ranking government positions, become airline CEOs, and are often promoted within the the organization.
Without Accountability
There is no Responsibility
Without naming the individuals in the lawsuit and holding them accountable, the AIR 21 statute does nothing to protect the traveling public because nothing is ever resolved. The airlines in some cases continue to violate the very violation they received many years earlier, in which they retaliated against the employee for reporting.
Who then is responsible for an airline that receives a violation? One would think the board of directors might be responsible. However, history shows they sit silent and don't do anything. There are laws in place, but they appear to slap a hand and those complicit individuals continue placing passengers at risk.
How do we Improve Aviation Safety?
At the end of the day you change the law to make it better!
Changing the AIR 21 Law is what I intend on doing. Please leave airline names off your comments. This post is not about individual airlines, but what we can do to improve safety going forward. If you have stories of particular airlines, feel free to email me, as I will use them in my pursuit of reforming the AIR 21 statute as an example, to align the statute with a Safety Culture.
Thank you for your support!
Enjoy the Journey!
XO Karlene
