Legal Memorandum: Reporting Aviation Safety Violations

Issue: What legal protection exists for aviation employees who report safety violations to the FAA?

Area of Law: Administrative Law, Administrative Law & Regulation (Federal and State), Aviation & Transportation Law, Employee Law
Keywords: Aviation safety violations; Reporting to FAA; Protection of employee
Jurisdiction: Federal
Cited Cases: 509 U.S. 502; 411 U.S. 792
Cited Statutes: 49 U.S.C.A. § 42121, § 42121(b)(2)(A); 29 C.F.R. § 1979.104(b); 49 U.S.C. § 42121(b)
Date: 03/01/2004


The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”), 49 U.S.C.A. § 42121 (West 2003), protects employees who report air-safety concerns to the FAA from retaliation by their employers.  Under the statute, the employee must show that (1) he or she engaged in a protected activity as defined by the AIR21 Act, (2) the employer knew the employee had engaged in protected activity, (3) the employer made an adverse employment decision, and (4) the employee’s protected activity was a contributory factor in the adverse action.  Id., § 42121(b)(2)(A); 29 C.F.R. § 1979.104(b) (2003).       

The statute effectively makes a whistleblower a member of a protected class of employees, similar to other protected classes of employees.  Recognizing that similarity, the Administrative Review Board allows that the McDonnell-Douglas “burden-shifting framework” may be used to determine an employer’s liability under § 42121.  See In re Peck v. Safe Air Int’l, Inc., ARB Case No. 02-028, ALJ Case No. 2001-AIR-3, 2004 WL 230770 (Admin. Rev. Bd. Jan. 30, 2004). 

Congress modeled AIR21 section 519(b)(2)(B) on section 211 of the [Energy Policy Act] . . . .  The ERA was amended in 1992 to incorporate, inter alia, the same gatekeeper test, a criterion permitting a complainant to prevail upon demonstrating that protected activity was a contributing factor in an unfavorable personnel action, and a provision permitting the employer to avoid liability by demonstrating by clear and convincing evidence that it would have taken the same action absent the protected activity.  In the course […]


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