Whistle While You Work

July 1, 2001

Whistle While You Work

You do have protection of sorts

By Stephen P. Prentice July 2001

Whistle: To summon, signal or direct; Whistler: One that whistles.
Webster’s Dictionary

The threat
Have you ever been required to sign off on work that was not completed in a satisfactory manner? Did you tell the supervisor that you were reluctant to approve work that was not completed to your own satisfaction? Have you been told that you could either sign off on the work or quit and somebody else would sign off the work?
Well, all of the above are actual facts from events that have occurred. Some of the technicians involved have asked for my advice on what to do when their job is threatened. A description of the whistleblower statute follows.
Technicians should always try to cooperate with their supervision to the extent that they can. But, keep in mind that when asked to violate a FAR, you must maintain your integrity and refuse even if your job is threatened.
Maintenance departments have always been under pressure to get more aircraft out the door and to reduce their costs. This is almost axiomatic in the business. It never ends. Some airline management people provide many incentives including cash payments to supervision in order to push aircraft out the hangar door. When FAA inspectors suspect this is the case and they see an incentive program involved in completing inspections, a red warning flag should go up. When maintenance is paid extra for production, FAA inspectors should look carefully at what is going on. Unfortunately, many times it is missed.
Is this a familiar scene in your situation? Are shortcuts taken due to the hustle and frenzy of getting aircraft out onto the line to generate revenue?

A step in the right direction
In an effort to stamp out acceptance of shoddy or non-conforming workmanship, Congress has recently enacted laws to protect people who report such conduct and bring it to the FAA’s attention. The protection consists of preventing an air carrier from discharging an employee who, in simple terms, blows the whistle on activity he concludes is illegal or contrary to Federal Air Regulations. Hence, the Whistleblower Protection Program was incorporated in the law.
If an employee knows that he has recourse when refusing to sign off on shoddy work, he can be confident in maintaining his position when pushed by supervision. The law is designed to provide a defensive weapon for the employee.

The law
Public Law 106-181, commonly called "Air 21" covers a wide range of subjects including the so-called "Hoover Law," which was named for Bob Hoover’s travails with the medical people in Oklahoma City. This section allows a direct appeal to the NTSB from emergency revocation action by the FAA. We discussed this section in detail in a previous article (AMT April 2000). Other subjects include a new criminal penalty for pilots operating in air transportation without an airman’s certificate. We will focus on the whistleblower section at this time, which is described in Subchapter III Section 42122.

What does it all mean?
At first blush, this law appears to be substantial protection for the employee. However, certain aspects of the law should be kept in mind.
In order to address your discrimination, you must file a complaint with the U.S. Labor Department within 90 days of the violation. So, if you get fired for refusing to do something because you feel it would be a violation, you had better get your act together and file a complaint within the time frame or you will lose your opportunity. Keep in mind that you must save and have available, all the evidence necessary to support your case. Make copies of everything in sight before you act, and if possible, get original copies of documents. You must be able to convince a hearing officer that your conduct as a reporting person was a contributing factor in your being discharged or otherwise discriminated against, although it need not be the sole factor that caused your discharge. This is called a prima facie showing in the law. Find a counselor to assist you: Attorney fees are granted in such matters if you prevail.

Fast action
One of the more favorable points in the law is that a decision must be made on your complaint within 120 days from the date of filing. You get an answer from the Government in three months. This may seem like a long time, but in regard to Government action, it is remarkable speed.

Keep in mind that the door is always open to settlement of your complaint at any time before, during or after the proceeding. In most cases, after you file your complaint, you will receive an offer to settle from the company if your complaint has any validity. Sometimes, it might be prudent to wait for a formal response to your complaint before accepting any settlement offer.

Decision and remedy
When and if a decision on your complaint is rendered in your favor by the Secretary of Labor, it can include the following :
An order to the employer to abate the violation (if still there).
An order to reinstate the employee to his or her former job, including compensation and back pay, and to restore all privileges and conditions of previous employment.
An order for further compensatory money damages to the employee.
In addition to the above, and on request of the complaining party (employee), the Secretary can assess an additional charge equal to the total amount of your costs, and expenses, including attorney fees and expert witness fees.
You should keep in mind that the mere threat of imposition of these remedies against the employer are the best incentive for a settlement at an early date.

Bad faith
Another point to keep in mind is that if you bring this type of action in bad faith, or for spite or some other reason that is not based on a bona fide complaint, the case will be dismissed as frivolous. You will be charged $1,000 to cover the employer’s attorney fees.

Just like most actions in the Federal arena, either party may appeal an adverse decision by the Secretary of Labor to the U.S. Court of Appeal in the Circuit in which the alleged violation complained about occurred. These appeals must be filed within 60 days of the issuance of the final order in the case.
One of the significant factors noted in the law regarding an appeal is this: If the employer loses the case, there can be no stay on the order that is issued. In other words, the order must be followed immediately and you get swift relief pending whatever appeal is filed by your employer. This factor among others, argues for the employer to let the matter rest and forget about any appeal.

The downside
Well, you have seen how the law can protect you—now you must think about the ramifications involved. You will get a reputation as a snitch. and nobody likes a snitch. However, where you can point out significant failures, you may save lives in the process and perhaps be called a hero instead. Use of this complaint procedure will undoubtedly follow you wherever you go and perhaps deter a future employer from hiring you. Keep in mind however, that in most cases, that future employer better have some other reason to reject you or the whole discrimination process could be started again.

Use good judgment
Use good judgment and discretion. The mere fact that an employer knows that this process is available to employees goes a long way in allowing you plenty of room to voice your concerns. No company wants to be embroiled in arguments in public with lawyers and judges. They generally want to keep their dirty laundry in house. Try to solve the problem in-house and who knows, you may get a promotion!

Whistleblower Protection Program
This law protects employees providing air safety information. In short, it states:
(a) Discrimination Against Airline Employees:
No air carrier—may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee:
(1) provided, caused to be provided, or is about to provide (with any knowledge of the employer) or cause to be provided to the employer or Federal government information relating to any violation, or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States;
(2) has filed or caused to be filed, or is about to file (with any knowledge of the employer) or caused to be filed a proceeding ( ie. a lawsuit) relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal Law relating to air carrier safety under this subtitle or any other law of the United States;
(3) testified or is about to testify in such a proceeding, OR
(4) assisted, or participated or is about to assist or participate in such a proceeding.