In Furland v. American Airlines Department of Labor Administrative Review Board finds employers responsible for whistleblower’s attorneys’ fees even when the amount exceeds damages awarded to the whistleblower.

In Furland v. American Airlines, the Department of Labor Administrative Review Board (“ARB”) upheld the finding of an administrative law judge in this Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) case that a pilot engaged in protected activity under the federal aviation whistleblower law when he refused to fly after becoming ill from airline food he had eaten on an earlier flight, and when he later complained about the airline’s attempts to pressure him to fly when he was unfit to fly.  The Administrative Law Judge noted, and the ARB agreed, that the airline’s insistence that the pilot bring in a doctor’s note supporting his decision not to fly was in fact an act of retaliation, as evidenced by the fact that the airline had no policy requiring such a note or prior approval of sick leave.

In this case, the ARB also reiterated the important principle that a company that retaliates against a whistleblower can be held responsible for payment of the whistleblower’s attorneys’ fees in full even where the attorneys’ fees are much greater than the amount the ALJ has awarded to the whistleblower in damages.  Debra S. Katz, a partner with Katz, Marshall & Banks in Washington, DC, who represents whistleblowers before the Department of Labor, said that the right of whistleblower to recover attorneys’ fees is critical to their ability to have access to the courts and to competent counsel to represent them.  “The corporations spare no expense in paying their lawyers to silence whistleblower,” Katz said.  “The ARB made the right decision in holding that a whistleblower is entitled to recover the full amount of his attorneys’ fees.  This is especially important where the retaliation is of a type that the law strictly prohibits but where the whistleblower may not be able to recover much in the way of damages.”  Most important to protecting the public safety, according to Katz, is that employees who are covered by AIR21 know their rights.

In protecting the pilot’s rights in this case, the ARB carried out Congress’s intent in enacting AIR21, which is designed to improve airline safety by extending federal whistleblower protections to the employees of air carriers and their contractors and subcontractors. Prior to the enactment of the law in 2000, aviation employees were not protected from retaliation if they reported possible safety violations or concerns. Under AIR21′s Whistleblower Protection Program, 49 U.S.C. Section 42121, these employees can disclose aviation hazards without fear of reprisal.

AIR21 covers “air carriers,” which are defined as citizens of the United States who directly or indirectly provide air transportation. The Act protects not only employees of air carriers, but their contractors and subcontractors as well. For purposes of the Act, a “contractor” is defined as a company that performs a safety-sensitive function by contract for an air carrier.  Employers may not retaliate against covered employees for providing information to or assisting in an investigation by the government or your employer regarding a potential violation of the laws of the Federal Aviation Administration (FAA) or any other federal law or regulation related to air carrier safety. The applicable FAA regulations are available at www.faa.gov.

Examples of protected activity include:

1. Alerting the FAA that an aircraft was being flown past its maintenance threshold;
2. Reporting that aircraft parts in warehouse bins did not contain the FAA required serviceable tag;
3. Disclosing to your employer that maintenance records were falsified;
4. Advocating the implementation of the Advanced Passenger Information System (APIS);
5. Informing flight crew members that an aircraft tire was defective; and
6. Reporting engine vibration, wing slat droop, cracked interior window covers, defective hydraulic reservoir, and missing wing placards.

Under AIR21, whistleblowers must file a complaint of retaliation with any office of the Occupational Safety and Health Administration (“OSHA”) within 90 days of retaliatory actions by the employer.  To prevail on a claim brought under AIR21, the complainant must prove the following by a preponderance of the evidence:

1. The employee engaged in protected activity;
2. The employer knew of the employee’s reporting/protected activity;
3. The employer subjected the employee to unfavorable personnel action; and
4. The employee’s protected activity was a “contributing factor” to the employer’s decision to take unfavorable personnel action against the employee.

AIR-21 prohibits any unfavorable personnel actions taken by an employer in retaliation for protected activity which have a negative effect on the employee’s terms, conditions, or privileges of employment. “Unfavorable personnel actions” can include, but are not limited to:

1. Termination of employment;
2. Demotion;
3. Denial of promotion;
4. Failure to pay overtime;
5. Failure to hire/rehire;
6. Intimidation or other physically or verbally threatening behavior;
7. Unwarranted discipline;
8. Unwarranted negative performance review;
9. Suspension or other forced leave;
10. Reduction in pay or hours;
11. Denial of benefits;
12. Reassignment that negatively impacts promotion prospects, seniority, or other benefits;
13. Blacklisting; or
14. Alteration of job duties (removal or excessive addition).

Complainants who succeed in proving their claims under AIR21, you may be entitled to remedies that include:

• Reinstatement with previous seniority and benefits
• Back pay for lost wages, with interest
• Compensatory damages
• Other possible relief to make you whole, including attorneys’ fees.

When an AIR21 whistleblower complaint is filed with OSHA, OSHA will provide the FAA with a copy of the complaint. Because the FAA is responsible for enforcing air safety regulations, the FAA will then conduct an investigation of the safety issues set forth in the AIR21 whistleblower complaint. An air carrier that violates AIR21 regulations may be subject to civil penalty.