How Effective is the AIR 21 Law?
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.