Whistleblower Law Blog
Topic: AIR 21
DOL Administrative Review Board Member Calls for ARB to Determine Whether Mandatory Arbitration Agreements Apply to Whistleblower Cases
In a recent case before the Department of Labor’s Administrative Review Board, which is the appellate body within the DOL that issues final agency decisions, Judge Luis Corchado, in his concurrence, called for the ARB to decide whether whistleblower laws enforced by the DOL, such as AIR 21 (protecting airline employees) or Sarbanes-Oxley (protecting those who disclose securities violations), can be subjected to mandatory arbitration. A holding that definitively determined that all whistleblower anti-retaliation claims could be subjected to mandatory arbitration would likely have detrimental effects in furthering the purposes of those laws.
Under mandatory arbitration provisions, typically seen in employment agreements or settlement agreements after litigation, parties agree that legal claims that could be pursued in court or administrative bodies must instead be submitted to a private arbitrator. The outcomes of such cases are almost always confidential. Further, in most arbitration, the arbitrator’s decision is final and is immune from appeal to a court absent a showing of extraordinary circumstances. Arbitration often serves to promote judicial economy by reducing litigation costs and lessening judges’ caseloads. But because of its inherently private nature, arbitration can also conceal wrongdoing from public knowledge.
The Department of Labor’s Administrative Review Board (ARB) found that Dawn Sewade, a helicopter pilot for Halo-Flight, Inc., engaged in protected activity under AIR-21 when she reported what she reasonably believed to be unsafe aircraft conditions to Halo-Flight. The ARB also held that Sewade’s allegations of constructive discharge following a retaliatory warning for her report were actionable under AIR-21. The ARB decision reversed a prior decision by the DOL’s Office of Administrative Law Judge s (ALJ) that Sewade’s complaint was not protected activity under AIR-21.
The ARB found that Sewade engaged in protected conduct when she reported a safety concern about her aircraft and refused to fly, claiming that her aircraft was violently pitching and that fuel sampling techniques used by Halo-Flight were not proper. Sewade also reported a mechanic who threatened Sewade’s job security after Sewade made her complaints.
On March 20, 2015, the Department of Labor Administrative Review Board (ARB) reversed and remanded a decision by the DOL’s Office of Administrative Law Judges (OALJ) that held a railroad employee had not proved that his report of a workplace injury was a contributing factor to management’s decision to terminate his employment.
Robert Powers reported to his employer, Union Pacific Railroad Company, that he injured his hand while operating a rail saw at work in May 2007. Over slightly more than a year, Powers saw several doctors who prescribed various treatments. His doctors also imposed a series of work restrictions, including limits on lifting and repetitive motions.
Union Pacific became suspicious about Powers’ reported injuries and resultant work restrictions. The company hired a private investigator who filmed Powers performing tasks around his property, including using a sledgehammer and carrying boxes of ammunition. After an internal administrative procedure that determined that Powers had violated the company’s dishonesty policy and had failed to stay within his medical restrictions, the company terminated Powers’ employment.
Department of Labor Administrative Review Board Upholds Compensatory Damages Award Based on Unrebutted Psychiatrist Testimony
On November 3, 2014, the U.S. Department of Labor Administrative Review Board ruled that a pilot was entitled to compensatory damages for retaliation by Continental Airlines for his protected refusal to fly a plane without an inspection.
The 2014 ARB decision upheld the determination made by an administrative law judge on remand from a previous ARB decision. On January 31, 2012, the ARB had affirmed the earlier ALJ decision, which found that Continental Airlines retaliated against Roger Luder. However, in its 2012 decision, the ARB held that the ALJ had improperly granted both back and front pay to Luder and remanded the case to determine the proper amount of damages.
Luder’s claims date back to 2007, when he and a co-pilot were scheduled to fly a Continental flight from Miami to Houston. Before departure, Luder’s co-pilot informed him that the plane had experienced turbulence during the previous flight that had gone unreported. Federal regulations require that planes be inspected after experiencing turbulence. Accordingly, Luder insisted that the plane be inspected prior to taking off and wrote a log entry regarding the turbulence.
As a result, Continental temporarily suspended Luder and issued him a “termination warning” letter citing “unprofessional behavior.” Luder eventually claimed to suffer from an array of ailments arising from the retaliation, and claimed those ailments caused him to fail a flight simulator test and be disqualified from flying.
Luder brought the suit under the whistleblower protection provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, also known as AIR 21, and its implementing regulations, 29 C.F.R. Part 1979 (2013). The ARB has authority to issue final agency decisions under AIR 21. The November 3, 2014 decision on damages was ARB Case No. 13-009.
The 2012 ARB decision had determined that Luder’s actions constituted protected activity under AIR 21 and that Continental’s suspension of Luder constituted an adverse action. The ALJ had awarded Luder compensatory damages for posttraumatic stress disorder, anxiety, and depression resulting from Continental’s retaliation for his refusal to fly an uninspected and potentially damaged plane. The ALJ relied on testimony by Luder and a psychiatrist, Dr. Shaulov. The ARB remanded to the ALJ for determination, under a preponderance of the evidence standard, that the retaliation caused the harm.
The ALJ entered a Recommended Decision and Order on Remand, determining that Luder proved that the retaliation caused his psychiatric condition that prevented him from returning to work. The ALJ found “ample support for causation . . . when the entire record, including the credible testimony of Dr. Shaulov, Dr. Jorgenson, and Luder, is considered.”
A dissenting opinion in the ARB’s recent 2014 decision argued that a judge should still examine undisputed expert testimony under Federal Rule of Evidence 702 for “sufficient facts or data that properly applied reliable principles and methods,” but stopped short of advocating a Daubert hearing.
Reversing a lower-level judge, the U.S. Department of Labor’s Administrative Review Board (ARB) said that that unions can be held liable for retaliating against whistleblowers under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21).
In affirming a pilot’s reinstatement and damages award, the U.S. Department of Labor’s Administrative Review Board (ARB) showed that its new Speegle test — which makes it tougher for employers to justify the firing of whistleblowers — will reach well beyond its initial application to the nuclear industry.
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 two related decisions last month, the U.S. Department of Labor’s Administrative Review Board (ARB) noted that proving retaliation in trucking-related whistleblower cases became “much easier” in 2007 — and said that judges will no longer get a free pass on applying the old standard.
On January 31, 2012, the Department of Labor’s Administrative Review Board (ARB) affirmed the decision of the Administrative Law Judge (ALJ) in the case of Luder v. Continental Airlines which found that Continental Airlines retaliated against a pilot who blew the whistle on perceived violations of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21). Additionally, the ARB held that the ALJ had improperly granted both back and front pay to former pilot Roger Luder, and remanded the case in order to determine the proper amount of damages.
In 2007, Mr. Luder and a co-pilot were scheduled to fly a Continental flight from Miami to Houston. Prior to departure, Mr. Luder’s co-pilot informed him that the plane had experienced turbulence during the previous flight that had gone unreported. Federal regulations require that planes be inspected after experiencing turbulence and, accordingly, Luder insisted that the plane be inspected prior to taking off and wrote a log entry regarding the turbulence. Subsequent to the incident, Continental temporarily suspended Luder and issued him a “termination warning” letter due to his ostensibly “unprofessional behavior.” Luder eventually claimed to suffer from Post-Traumatic Stress Disorder (PTSD), depression, and anxiety that arose from the retaliation he endure which, in turn, caused him to fail a flight simulator test and then be disqualified from flying.
The ALJ found that Luder’s actions constituted protected activity and that the airline’s actions were ‘materially adverse’ and retaliatory under AIR 21. The ALJ ordered Continental to pay Luder front and back pay as a result of the time he missed from work due to his health problems and also awarded the pilot monetary damages for having suffered retaliation.
Continental appealed the decision to the ARB claiming that Luder’s entry of the turbulence into the logbook was not a protected activity, citing Fabre v. Werner Enters which held that an action undertaken as “an integral part of compliance with the regulations” without further steps does not constitute a protected activity. The ARB, however, rejected this claim and distinguished Luder’s action from the situation in Fabre because Luder had gone above and beyond merely noting the turbulence in the logbook by insisting that the aircraft be inspected and refusing to fly until an inspection had been performed.
In addition to affirming the sufficiency of Luder’s protected activity under AIR 21, the ARB also found that the ALJ had properly ruled that Continental’s temporary suspension of Luder constituted an adverse action under the ‘materially adverse standard’ as the suspension resulted in a loss of wages. The ARB also held that while in some instances a warning letter does not necessarily constitute an adverse action, here the warning letter to Luder constituted an adverse action because having such a letter on file rendered Luder ineligible for an internal transfer according to company policy. Finally, the ARB viewed as significant the ALJ’s finding that the warning letter threatened Luder with further disciplinary action, including termination, and as a result, Luder “would be extremely reluctant to question airline safety because engaging in similar unacceptable behavior would result in his being fired.”
This most recent decision on what constitutes an adverse action against a whistleblower under AIR 21 comes after the Menendez v. Halliburton decision in September 2011 in which the ARB adopted a broad interpretation of the anti-retaliation provision of the Sarbanes-Oxley Act. In Menendez, the ARB noted that adverse actions “[refer] to unfavorable employment actions that are more than trivial, either as a single event or in combination with other deliberate employer actions alleged.”
In Harding v. So. Cal Precision Aircraft, U.S. Department of Labor Administrative Law Judge (ALJ) Russell D. Pulver held that 31-year military veteran Michael Harding had engaged in protected whistleblower activity when he reported his employer’s unsafe working conditions to the Federal Aviation Administration (FAA). ALJ Pulver further held that Harding’s employer violated Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), when it terminated Harding for engaging in protected whistleblowing activity.
In December 2006, Harding began work as an inspector at So. Cal. Precision Aircraft, Inc. (later purchased by Norton Aircraft Maintenance Services, Inc.). He was quickly promoted to lead inspector and later to senior auditor inspector. Harding made daily complaints to management regarding significant safety issues at work, such as:
- the improper use of an acetylene torch;
- the propping open of a 1500-pound cargo door with a wooden 2×4 instead of opening it hydraulically and locking it in place;
- the operation of the plant without a qualified Director of Maintenance.
[His manager] entered the office upset and cursing, telling [Harding] that he had six attorneys who were going to “kick [his] ass.” When [Harding] attempted to leave, [his manager] spit in his face and blocked his way. [Harding] called for security but when the officer arrived [his manager] told the officer that [Harding] had attacked him and was to leave immediately.
- DOL ALJ Orders Whistleblower Truck Driver Reinstated at Beacon Transport (employmentlawgroupblog.com)
- U.S. DOL ARB Ends Landmark Year Holding Summary Decision Improper Unless Employer Proves Sarbanes-Oxley Act Does Not Apply (employmentlawgroupblog.com)
- Tax Court Protects Identity of IRS Whistleblower (employmentlawgroupblog.com)