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Dept. of Labor ARB Affirms Broad Scope of Adverse Employment Actions Under AIR 21 in Whistleblower Case Against American Airlines

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The U.S. Department of Labor Administrative Review Board (ARB) held in the case of Williams v. American Airlines that a written warning or counseling session conducted by an employer is presumptively an adverse employment action against an employee where:

  1. it is considered discipline by policy or practice,
  2. it is routinely used as the first step in a progressive discipline policy, or
  3. it implicitly or expressly references potential discipline.

The ARB further clarified the broad definition for adverse employment actions under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21):

To settle any lingering confusion in AIR 21 cases, we now clarify that the term “adverse actions” refers to unfavorable employment actions that are more than trivial, either as a single event or in combination with other deliberate employer actions alleged. . . . While we agree that it is consistent with the whistleblower statutes to exclude from coverage isolated trivial employment actions that ordinarily cause [trifling] harm or none at all to reasonable employees, an employer should never be permitted to deliberately single out an employee for unfavorable employment action as retaliation for protected whistleblower activity.  The AIR 21 whistleblower statute prohibits the act of deliberate retaliation without any expressed limitation to those actions that might dissuade the reasonable employee.  Ultimately, we believe our ruling implements the strong protection expressly called for by Congress.

The complainant is Brian Williams, a licensed aviation maintenance technician at John F. Kennedy Airport (JFK), who alleges that American Airlines, Inc. violated the whistleblower protection provisions of AIR 21 when his supervisor disciplined him for ordering the re-inspection of an aircraft’s brakes.  During the first inspection of the aircraft, Williams and another mechanic, Joe Urso, determined that the aircraft’s brakes needed to be changed.  Because the brake change took longer than usual, Williams and Urso believed another inspection was required.  Their immediate supervisor disagreed and reported the incident to Williams’s direct supervisor who then determined that Williams had a job performance issue and scheduled a counseling session with Williams.  The counseling session resulted in Williams having negative remarks entered into his personnel record.

AIR 21 provides that “[n]o 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 has engaged in certain protected activities, including providing information to the employer or the Federal government about a violation, or alleged violation of any Federal law relating to air carrier safety.  Department of Labor regulations define “discrimination” under AIR 21 to include efforts by the employer “to intimidate, threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate against any employee” because the employee engaged in protected activity.  As a matter of law, AIR 21 includes reprimands (verbal or written), as well as counseling sessions that are coupled with references to potential discipline.

Notably, the ARB also rejected the Sixth Circuit’s holding in Melton v. Yellow Transp. Inc. by stating:

We believe it is irrelevant whether the employer’s personnel policies allow its employees to appeal or formally challenge a written warning.  A great number of workers are “at will” employees who have no right to appeal a suspension or termination, much less a written warning.  Personnel policies are often drafted solely by the employer and hinge on the employer’s unilateral assessment as to the extent of appellate procedures it can address given limited resources.

For more information about AIR 21 or to seek assistance with reporting violations.

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