AIR21 Aviation Advocate Reform Act
The AIR21, Whistleblower, statute is flawed and does not protect the employee, but enables and supports airline management to retaliate despite the law.
In January 2018, Safety Management Systems (SMS) became a federal mandate designed to evaluate the airline operating environment, assess hazards, mitigate risk, and capture errors. A core requirement of SMS is a bona fide safety culture with emphasis on ground-up communications in a flexible, blame-free, accountable environment that encourages reporting safety concerns so that management has both the knowledge and ability to support the system’s overall safety goals. An airline’s safety culture establishes the indispensable foundation of a successful SMS in accordance with the FAA-mandated criteria.
The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) was enacted in 2000 to protect airline employees when internally reporting a violation of a "federal standard" to their management or directly to the FAA. But this law does not protect employees who are required to report under the SMS federal standard of 2018. The Reporting Culture component of SMS dictates employees must report “anything” they see that could impact safety to mitigate risk in a retaliatory-free environment, not simply a “federal standard” violation.
Currently, the only means that an employee can initiate enforcement of SMS standards regarding retaliatory free reporting is pursuant to the AIR21 statute. However, the AIR21 statute at face value conflicts with SMS regulatory reporting, protects the employer more so than the employee, holds nobody accountable, does not mandate a solution to the problem, and can find the employee in financial detriment even when they win.
The necessary changes include: (1) change reference from the “Whistleblower Law” to the "Safety Advocate Law"; (2) extend the restrictive statute of limitations from 90 days to 300 days; (3) Expedite the OSHA investigatory process by limiting OSHA's involvement; (4) expand the definition of protected activity to include SMS; (5) allow to name individuals involved in order to hold them accountable; (6) liberalize the statute’s damages provision in alignment with similar statutes to include punitive damages; and (7) provide for an alternative to the subjectivity of "reasonable" legal fees to enable the employee full legal reimbursement.
Currently the AIR21 statue is referred to as the “Whistleblower Law”, indicating that employees are blowing the whistle on their airline to the FAA. A review of AIR21 cases identifies that most complaints are internal where the employee was making an effort to identify a problem internally to management to assist in improving safety. Furthermore, the term “whistleblower” holds a negative connotation similar an informant or snitch, which undermines the statutory intent of encouraging employees to come forward to improve safety.
Naming Convention Proposal
References to the AIR21 statute should be changed from the “Whistleblower Law” to the Safety Advocate Law.
Statute of Limitations
The AIR21 statute has the shortest statute of limitations of any discrimination law—90 days. The problems with this truncated limitation period are many. 1) Most employees are unaware of this law, and by the time they learn of it it’s too late to receive the intended protections. 2) Airline employees who are protected under a union’s collective bargaining agreement will be pressed by their union and management to follow the grievance process, believing that the grievance process will protect them. However, the AIR21 statute was enacted because Congress realized passenger safety must not be held in the hands of an arbitrator who is paid, at least in part, by the employer. 3) With only 90 days to file, those employees who know of the law are forced to file. Whereas, if the event was an honest mistake, the matter could be readily solved in the first stage of the grievance process if there was time. 4) Sexual harassment federal statute is 180 days, with state laws up to 300 days or more. Safety should be placed, at minimum, on par with sexual harassment in that lives are at risk. 5) The fraud statute of limitations is four years or more. Paying a doctor for a false diagnosis is aligned with fraud.
Statute of Limitations Proposal
Extend the statute of limitations to file an AIR21 complaint to 300 days.
The AIR21 statute involves a joint investigation by both OSHA and the FAA. However, OSHA investigators lack the requisite knowledge of airline operations, and, even where the FAA’s investigation substantiates a violation in the same case, OSHA may still rule on behalf of the airline. OSHA may also take multiple years to conduct an investigation, enabling the airline to engage in subsequent violations during that extended time, while the employee is without a paycheck, of which sends a warning to all employees that the OSHA process is futile. This extended time harms the employee who has lost his or her job unjustly. Taxpayer dollars are funding this most inefficient process with an illusion that safety is being improved, whereas this process has the opposite effect and one of the most inefficient government processes.
OSHA is currently tasked with ruling on all four components of an AIR21 complaint: (1) Protected activity, (2) brought forth in good faith, (3) resulting in an adverse action and, (4) with a causal link to the adverse action. Unfortunately, rarely does management admit that their adverse action is motivated by discriminatory animus. To task an OSHA investigator with making this determination, given the investigator’s lack of knowledge of airline operations, leaves the airline in complete control of this process.
A workaround of this inefficient process is for the employee to take the loss with OSHA and then immediately appeal to ensure expeditious justice. If a law requires a workaround to bypass OSHA, then the current process is ineffective. Currently the OSHA process discourages employees from pursuing the justice necessary to enhance safety and is widely seen as a roadblock in the path toward justice more so than being a neutral investigation.
OSHA Process ProposalOSHA should be required to determine within a maximum of two months only the following three facts: 1) Did the employee report safety concerns to management, 2) did the employee suffer an adverse action, and 3) was there temporal proximity from the report to the adverse action. If those points are satisfied, then OSHA rules on behalf of the employee. The airline can then appeal to address those facts and causation.
As of April 5, 2000, the AIR21 statute has protected employees for reporting non-compliance with federal standards. Eighteen years later SMS became a federal standard. Embodied within that standard is a federal requirement mandating a reporting culture. It is not clear from relevant case law that the AIR21 statute is consistent with the FAA’s SMS mandate. Under SMS, anything that identifies a potential risk is required by law to be reported in order to assess and mitigate that risk as necessary; yet identification of risk is not a protected activity under the current AIR21 statute.
Under SMS, employees are required to identify threats and communicate those concerns to mitigate associated risk, in effort to avoid an accident. This is the very reason a reporting culture is a key element to safety. Employees must report the threat before the accident occurs. A reporting culture requires that employees are encouraged to report in a retaliatory-free environment. By limiting protection under the AIR21 statute to only those issues that are explicit federal mandates, this narrow interpretation of AIR21 protected activity undermines the risk mitigation strategy at the core of SMS. SMS is a Federal Regulation. In short, AIR21 is not achieving the goal for which it was designed and conflicts with federal SMS regulations.
Protected Activity ProposalAnything an employee reports in good faith to improve safety of airline operations will be deemed “protected activity” under the AIR21 statute in alignment with SMS.
Naming those Involved
The current statute does not allow for naming individuals as defendants, but only the organization. This distinction is at variance with a growing number of state discrimination laws, and the federal Fair Labor Standards Act, which held individual supervisors accountable. People are violating the law, not the entity. When organizations have a negative safety culture, in that they condone the retaliation of an employee bringing forth safety concerns, these managers are not only free from accountability, but are frequently rewarded by the airline for their retaliatory action. The impunity of supervisors under the AIR21 statute further silences employees from reporting safety concerns; and when such retaliatory managers are promoted, the process encourages retaliation and discourages reporting. Even if the airline loses its AIR21 case, there is not requirement for the employer to hold anyone accountable.
Enabling individuals to be named in the lawsuit, along with the company, will create an incentive for management representatives to assess their actions and think twice before they engage in retaliatory actions, knowing they could be personally liable. These individuals should no longer hide behind the airline or manufacturer.
Naming All Involved ProposalEnable complainants to name specific individuals in the AIR 21 complaint in addition to the organization.
This statute only allows for compensatory damages and does not allow for fines or punitive damages. Other OSHA statutes provide for punitive damages such as: Federal Railroad Safety Act Whistleblower Protection Provision (FRSA), National Transit Systems Security Act (NTSSA), and Seamans Protection Act (SPA). Why not air travel? The purpose of punitive damages is to punish respondents for violating the law. Airlines and individuals must be held accountable for their actions that involve the safety of the traveling public. A slap on the wrist to a corporation will not solve the problem.
Damages ProposalIf found in violation of the AIR21 statute, the Administrative Law Judge has the authority to fine the airline any amount the ALJ deems appropriate for the situation and apply punitive and compensatory damages.
Under the AIR21 statute, an employee who wins their case is only awarded “reasonable” attorney fees. While the airline can afford millions in defense of an indefensible position utilizing stockholder funds, the employee, who has been removed from duty because of reporting safety concerns, is without a paycheck, has a mortgage, mouths to feed, and kids to educate, can rarely afford to compensate a competent lawyer. The airline has unlimited resources to drag out a lawsuit in a war of attrition, file frivolous motions, and run up the employee’s legal fees. With subjective attorney fees identified as "reasonable" in combination with compensatory damages the employee could win, but the unrecovered attorney fees may exceed the compensatory damages.
Legal Fees ProposalThe employee will receive all attorney fees and all associated legal expenses.
The federal government found it necessary to enact the 2018 SMS mandate to improve safety by including the mandatory adoption of a risk mitigation program embodying a reporting culture, clearly indicating the ineffectiveness of the 2000 Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21). The necessity of incorporating all changes within this AIR 21 Aviation Advocate NextGen Reform Act are more critical as the industry moves into the NextGen environment. In addition, the 2020 Aircraft Certification Safety and Accountability Act should include similar provisions within this proposal.
I'm asking you to share the link with ten or more people and ask them to do the same. I'm asking all my International friends who are passionate about safety and concerned with the trajectory of our industry to sign. I intend on making this a world law. One step at a time.
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I highly recommend Lee Seham.
Common Sense really.ReplyDelete
Thank you! Unfortunately sense is not common these days.Delete
Thank you for putting this together!ReplyDelete
You're welcome and thank you!!Delete