Wendell H. Ford Aviation Investment and Reform Act for the 21st Century

Wendell H. Ford Aviation Investment and Reform Act for the
21st Century (AIR21)
Public Law 106-181, April 5, 2000
49 USC Section 42121
SUBCHAPTER III-WHISTLEBLOWER PROTECTION PROGRAM

§42121. Protection of employees providing air safety information
(a) DISCRIMINATION AGAINST AIRLINE EMPLOYEES - No air carrier or contractor or
subcontractor of an 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 (or any person acting pursuant to a request of 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, caused to be filed, or is about to file (with any knowledge of the employer)
or cause to be filed a proceeding 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
(b) DEPARTMENT OF LABOR COMPLAINT PROCEDURE
(1) FILING AND NOTIFICATION - A person who believes that he or she has been
discharged or otherwise discriminated against by any person in violation of subsection (a)
may, not later than 90 days after the date on which the violation occurs, file (or have any
person file on his or her behalf) a complaint with the Secretary of Labor alleging such
discharge or discrimination. Upon receipt of such a complaint, the Secretary of Labor
shall notify, in writing, the person named in the complaint and the Administrator of the
Federal Aviation Administration of the filing of the complaint, of the allegations contained
in the complaint, of the substance of evidence supporting the complaint, and of the
opportunities that will be afforded to such person under paragraph (2).
(2) INVESTIGATION: PRELIMINARY ORDER
(A) IN GENERAL Not later than 60 days after the date of receipt of a complaint filed under
paragraph (1) and after affording the person named in the complaint an opportunity to
submit to the Secretary of Labor a written response to the complaint and an opportunity
to meet with a representative of the Secretary to present statements from witnesses, the
Secretary of Labor shall conduct an investigation and determine whether there is
reasonable cause to believe that the complaint has merit and notify, in writing, the
complainant and the person alleged to have committed a violation of subsection (a) of

the Secretary's findings. If the Secretary of Labor concludes that there is a reasonable
cause to believe that a violation of subsection (a) has occurred, the Secretary shall
accompany the Secretary's findings with a preliminary order providing the relief
prescribed by paragraph (3)(B). Not later than 30 days after the date of notification of
findings under this paragraph, either the person alleged to have committed the violation
or the or complainant may file objections to the findings or preliminary order, or both,
and request a hearing on the record. The filing of such objections shall not operate to
stay any reinstatement remedy contained in the preliminary order. Such hearings shall be
conducted expeditiously. If a hearing is not requested in such 30-period, the preliminary
order shall be deemed a final order that is not subject to Judicial review.
(B) REQUIREMENTS (i) REQUIRED SHOWING BY COMPLAINANT-The Secretary of Labor shall dismiss a
complaint filed under this subsection and shall not conduct an investigation otherwise
required under subparagraph (A) unless the complainant makes a prima facie showing
that any behavior described in paragraphs (1) through (4) of subsection (a) was a
contributing factor in the unfavorable personnel action alleged in the complaint.
(ii) SHOWING BY EMPLOYER - Not withstanding a finding by the Secretary that the
complainant has made the showing required under clause (i), no investigation otherwise
required under subparagraph (A) shall be conducted if the employer demonstrates, by
clear and convincing evidence, that the employer would have taken the same unfavorable
personnel action in the absence of that behavior.
(iii) CRITERIA FOR DETERMINATION BY SECRETARY. - The Secretary may determine that
a violation of subsection (a) has occurred only if the complainant demonstrates that any
behavior described in paragraphs (1) through (4) of subsection (a) was a contributing
factor in the unfavorable personnel action alleged in the complaint.
(iv) PROHIBITION - Relief may not be ordered under subparagraph (A) if the employer
demonstrates by clear and convincing evidence that the employer would have taken the
same unfavorable personnel action in the absence of that behavior.
(3) FINAL ORDER
(A) DEADLINE FOR ISSUANCE; SETTLEMENT AGREEMENTS - Not later than 120 days
after the date of conclusion of a hearing under paragraph (2), the Secretary of Labor
shall issue a final order providing the relief prescribed by this paragraph or denying the
complaint. At any time before issuance of a final order, a proceeding under this
subsection may, be terminated on the basis of a settlement agreement entered into by
the Secretary of Labor, the complainant, and the person alleged to have committed the
violation.
(B) REMEDY - If, in response to a complaint filed under paragraph (1), the Secretary of
Labor determines that a violation of subsection (a) has occurred, the Secretary of Labor
shall order, the person who committed such violation to
(i) take affirmative action to abate the violation;
(ii) reinstate the complainant to his or her former position together with the
compensation (including back pay) and restore the terms, conditions, and privileges
associated with his or her employment; and
(iii) provide compensatory damages to the complainant.
If such an order is issued under this paragraph, the Secretary of Labor, at the request of
the complainant, shall assess against the person against whom the order is issued a sum

equal to the aggregate amount of all costs and expenses (including attorneys’ and expert
witness fees) reasonably incurred, as determined by the Secretary of Labor, by the
complainant for, or in connection with, the brining the complaint upon which the order
was issued.
(C) FRIVOLOUS COMPLAINTS - If the Secretary of Labor finds that a complaint under
paragraph (1) is frivolous or has been brought in bad faith, the Secretary of Labor may
award to the prevailing employer a reasonable attorney’s fee not exceeding $1,000.
(4) REVIEW(A) APPEAL TO COURT OF APPEALS - Any person adversely affected or aggrieved by an
order issued under paragraph (3) may obtain review of the order in the United States
Court of Appeals for the circuit in which the violation, with respect to which the order was
issued, allegedly occurred or the circuit in which the complainant resided on the date of
such violation. The petition for review must be filed not later than 60 days after the date
of the issuance of the final order of the Secretary of Labor. Review shall conform to
chapter 7 of title 5, United States Code. The commencement of proceedings under this
subparagraph shall not, unless ordered by the court, operate as a stay of the order.
(B) LIMITATION ON COLLATERAL ATTACK - An order of the Secretary of Labor with
respect to which review could have been obtained under subparagraph (A) shall not be
subject to judicial review in any criminal or other civil proceeding.
(5) ENFORCEMENT OF ORDER BY SECRETARY OF LABOR - Whenever any person has
failed to comply with an order issued under paragraph (3), the Secretary of Labor may
file a civil action in the United States district court for the district in which the violation
was found to occur to enforce such order. In actions brought under this paragraph, the
district courts shall have jurisdiction to grant all appropriate relief including, but not
limited to, injunctive relief and compensatory damages.
(6) ENFORCEMENT OF ORDER BY PARTIES (A) COMMENCEMENT OF ACTION - A person on whose behalf an order was issued under
paragraph (3) may commence a civil action against the person to whom such order was
issued to require compliance with such order. The appropriate United States district court
shall have jurisdiction, without regard to the amount in controversy or the citizenship of
the parties, to enforce such order.
(B) ATTORNEY FEES - The court, in issuing any final order under this paragraph, may
award costs of litigation (including reasonable attorney and expert witness fees) to any
party whenever the court determines such award is appropriate.
(c) MANDAMUS - Any nondiscretionary duty imposed by this section shall be enforceable
in a mandamus proceeding brought under section 1361 of title 28, United States Code.
(d) NONAPPLICABILITY TO DELIBERATE VIOLATIONS - Subsection (a) shall not apply
with respect to an employee of an air carrier, contractor, or subcontractor, who, acting
without direction from such air carrier, contractor, or subcontractor (or such person's
agent), deliberately causes a violation of any requirement relating to air carrier safety
under this subtitle or any other law of the United States.
(e) CONTRACTOR DEFINED - In this section, the term "contractor" means a company that
performs safety-sensitive functions by contract for an air carrier.