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ARB Allows Whistleblower to Challenge Arbitration of Retaliation Claim

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The U.S. Department of Labor’s Administrative Review Board (ARB) said it would hear an airline whistleblower’s appeal of a decision forcing her into arbitration with her former employer, saying the delay of arbitration might jeopardize her rights under the the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21) — and therefore could undermine AIR 21 itself.

In its order, the ARB granted review of a judge’s requirement that Sabra Willbanks comply with an arbitration clause in her employment agreement before proceeding with her retaliation claim against Atlas Air Worldwide Holdings, Inc. and Flight Services International LLC. While noting that such appeals “are generally disfavored,” the ARB said the delay caused by arbitration “could foreclose any meaningful subsequent review” of Ms. Willbanks’ AIR 21 claim.

“Should that occur,” said the board, “it is not merely a question whether [Ms.] Willbanks’ rights under AIR 21 have been properly vindicated, but whether the underlying purposes of AIR 21 have been served. … Congress intended that whistleblowers play an important role in [AIR 21].”

Since the broader objective of AIR 21 is to ensure the safety of the air-traveling public, the ARB found “exceptional circumstances” that warranted its hearing of Ms. Willbanks’ appeal.

While the outcome for Ms. Willbanks isn’t certain, the ARB’s logic in her case could apply far beyond AIR 21: Most statutes that include whistleblower protection are motivated by public safety or similarly compelling purposes, and so may provide a rationale for resisting the rise of mandatory arbitration.

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