The Occupational Safety and Health Administration (OSHA) announced on Friday that it has found that New Jersey based air carrier Worldwide Jet Charter LLC retaliated against one of its pilots. OSHA has issued a reinstatement order, and this order has immediate effect even if Worldwide chooses to appeal. OSHA made its determination under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, which is also called AIR 21. "Pilots and other workers of air carriers have the legal right to report violations of federal aviation regulations," said Robert Kulick, OSHA’s regional administrator in New York. "Air carriers that retaliate against employees for exercising their rights under AIR21 will be held accountable." OSHA did not release the name of the pilot, but it did announce that its determination provided for back pay, compensatory damages, attorney fees, expungement and an order to post a notice to employees about their rights under AIR 21. This announcement follows another OSHA determination in March for a SOX whistleblower, indicating new hope for whistleblowers about the pace and success of OSHA whistleblower cases.
The Idaho Supreme Court gave an aviation safety whistleblower good news on July 7. In Van v. Portneuf Medical Center, the Court remanded Mark Van’s case back to an Idaho trial court to consider his claim of wrongful termination. The Idaho Supreme Court held that the district court judge erred in granting summary judgment to a hospital on the whistleblower part of the lawsuit.
Mark Van had worked as the Portneuf Medical Center since 1986 in helicopter maintenance. After a 2001 crash, Van became more concerned about complying with state and federal safety standards. The National Transportation Safety Board determined that the 2001 crash was a result of pilot error, and Van raised concerns about pilots working more hours than allowed. He also raised concerns about loopholes in a maintenance contract with a helicopter vendor. In 2005, the medical center fired Van, citing his, “his inability to maintain positive interpersonal relations with his colleagues and to foster a positive team environment.”
The Idaho Supreme Court made clear that the state’s Whistleblower Act, I.C. § 6-2105(4), protects employees for raising protected concerns reguardless of whether or how an employer addresses the substantive violation. Slip opinion, page 7. The Court also held, however, that raising a concern about a possible future waste of funds is not protected under Idaho law. The Court also affirmed dismissals of Van’s claims for breach of contract and breach of the covenant of good faith and fair dealing, Finally, the Court upheld a decision denying Van discovery of the vendor’s proposed contract as Van’s concern about that contract was not protected.
It will be interesting to follow what the medical center says about why it thought Van could not maintain a positive interpersonal relationship with the other staff. Could it be that it was because Van was blowing the whistle on their failure to put safety first? It would be good for courts to recognize that an employer claim that a whistleblower cannot get along with others reflects a stereotype of whistleblowers and is direct evidence of animus against their protected activity.
Other aviation whistleblowers may want to consider filing complaints with the U.S. Department of Labor under the AIR 21 law. The time limit to file written complaints with OSHA is 90 days.
It has now been seven (7) weeks since Hilda Solis was confirmed as Secretary of Labor, and in those seven weeks, that Department's Administrative Review Board (ARB) continues to churn out decisions that run against the purpose of protected whistleblowers from retaliation.
The new Secretary of Labor can appoint a new set of ARB members at any time, but until she does, we will continue to suffer with decisions like these:
In Carter v. GDS Transport, Ltd., ARB No. 08-053, ALJ No. 2008-STA-9 (ARB Feb. 27, 2009), the ARB dismissed Marcolm Carter's case by holding that his complaint about a broken air conditioner on a shuttle bus was not protected. The ARB finds that air conditioning is not a safety or health issue, even for shuttle buses in El Paso, Texas. The ARB shows a remarkable lack of imagination. Have they never sensed how it feels to drive for hours in the heat? How about a CNN news poll: Are you a safer driver when the air conditioner works, or when it doesn't work? Moreover, the ARB is not moved by Carter's long record of complaining about issues such as brakes, tires and doors. Apparently, it is okay with this Board to fire truck driver whistleblowers as long as you wait for them to complain about a broken air conditioner.
In Johnson v. Econo Steel, LLC, ARB No. 07-111, ALJ No. 2007-STA-12 (ARB Feb. 23, 2009), the ARB held that Gary Johson is not protected when he asks to talk to the plant manager about an assignment to drive 860 miles after making local deliveries. The ARB wants truck drivers to specifically cite the Department of Transportation's hours of service rule to show that their concern for safety is one that is specifically required by law. It is no longer enough for a driver to just say, "I am concerned about how long this trip is," even when everyone in the industry knows about the hours of service rule. So, truck drivers should complete law school before getting behind the wheel.
In Farnham v. International Manufacturing Solutions, ARB No. 07-095, ALJ No. 2006-SOX-111 (ARB Feb. 6, 2009), the company sued the whistleblower for interference in its loans, slander and infliction of emotional distress. The ARB wrote that Keith Farnham, " has failed to establish how [the] filing [of the] civil suit against [him]... injured him in any way in relation to 'the terms and condition of his employment.'" All those bosses angry at their whistleblowers just need to learn not to fire them -- just sue them instead and you will be off the hook for retaliating. The ARB's decision does not even mention the U.S. Supreme Court decision of Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). There, the high court made clear that courts must accept retaliation cases for any materially adverse action. That is the only way to encourage employees to come forward with information in the public interest. That this ARB would seek to narrow the scope of actionable adverse actions shows a desire to do less work for whistleblowers. That desire is the opposite of the purpose of the DOL's whole whistleblower program.
In LeRoy v. Keystone Helicopter, Inc., ARB No. 07-056, ALJ Nos. 2006-AIR-3 and 24 (ARB Mar. 31, 2009), the ARB dismissed Danny LeRoy's AIR 21 case because he could not prove that the particular helicopter he was working on was used for passenger transportation. This decision overlooks how the company as a whole is covered by AIR 21 as a "contractor" to an air carrier. See 49 U.S.C. § 42121(a). Now, the ARB does not want to protect us from falling helicopters unless the whistleblower can prove not only that he or she is fired on account of raising a safety concern, but also that this particular safety concern was for a specific aircraft that the whistleblower can prove was used to carry passengers. This is not a requirement in the statute, but rather another effort by the ARB to limit the number cases for which it must award protection for whistleblowers.
In Collins v. Village of Lynchburg, Ohio, ARB No. 07-079, ALJ No. 2006-SDW-3 (ARB Mar. 30, 2009), the ARB wipes out the Department's ability to award exemplary damages against municipalities. To do this, the ARB misreads the Supreme Court's opinion in Newport v. Fact Concerts, Inc., 453 U.S. 247, 270-271 (1981) (holding that in action brought under 42 U.S.C.A. § 1983, municipalities are immune from punitive damages). The ARB didn't notice how 42 U.S.C.A. § 1983 fails to state explicitly that punitive damages can be awarded. The Supreme Court held that it would not imply such a remedy against government units. However, the Safe Drinking Water Act (SDWA) DOES explicitly provide for exemplary damages. As such, the logic of Newport has no application to SDWA claims. Also, did the ARB forget that practically all employers in SDWA cases would be municipalities? Who else runs public drinking water systems? Of course Congress knew that its provision of exemplary damages would apply to municipalities.
Together, these decisions show that we are burdened with an old ARB that is just not with the program of protecting whistleblowers and the public. It is time for a change.