The Federal Aviation Administration (FAA) and the Occupational Safety and Health Administration (OSHA) have once again teamed up to coordinate efforts in enforcing a federal air carrier safety law. These agencies recently released a Memorandum of Understanding (MOU), the purpose of which “is to facilitate coordination and cooperation concerning the protection of employees who provide air safety information under . . . 49 U.S.C. § 42121,” the whistleblower protection provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21). This agreement replaces a previous MOU between the agencies dated March 22, 2002, but the agencies’ other previous MOU, from August 26, 2014, remains intact.
The whistleblower protection provision at issue, 49 U.S.C. § 42121, prohibits air carriers and their contractors or subcontractors from discharging or otherwise discriminating against an employee for: (a) disclosing information to their employer or the federal government relating to a violation or alleged violation of any federal regulation or law relating to air carrier safety; (b) filing a proceeding related to the violation of any such laws or regulations; (c) testifying in such a proceeding; or (d) assisting or participating in such a proceeding.
The FAA and OSHA already have various responsibilities related to this provision. OSHA is responsible for investigating employee complaints of discrimination, and it may order violators to abate the violation, reinstate the complainant (with back pay), or pay compensatory damages (including attorney fees). The FAA is responsible for investigating complaints related to air carrier safety, and it has the authority, pursuant to the FAA’s statute, to enforce air safety regulations and issue sanctions to airmen and air carriers for noncompliance with such regulations. Other permissible enforcement actions by the FAA include imposing civil fines and suspending or revoking air carrier or airman certificates.
In the new MOU, which went into effect in December, OSHA and the FAA agreed “to cooperate with each other to the fullest extent possible in every case of alleged discrimination involving an employee of an air carrier or air carrier contractor or subcontractor.” More specifically, OSHA has agreed to: (a) “promptly notify” the FAA of any discrimination complaints it receives under § 42121; (b) “promptly provide” the FAA with a copy of the complaint, including the complainant’s contact information; (c) provide the FAA all investigative findings, preliminary orders, investigation reports, and orders associated with any hearings or administrative appeals related to the complaint; and (d) keep the FAA informed of the status of any administrative or judicial proceedings seeking review of Department of Labor orders issued under § 42121. On the other hand, when an individual directly notifies the FAA of alleged discrimination involving air carrier safety, the FAA has agreed to promptly provide OSHA with a copy of the complaint, including the complainant’s contact information. The FAA will also inform OSHA of investigative results, including whether any violations of air carrier safety regulations occurred. Perhaps most importantly, the FAA will inform the relevant individual that: (a) personal remedies for the alleged discrimination are available only through the Department of Labor; (b) the individual should personally contact the Department of Labor; and (c) complaints must be filed with OSHA within ninety days of the alleged discrimination.
Admittedly, this new MOU does nothing to alter AIR-21, and employers’ obligations under § 42121 remain unchanged. However, employers should be aware of this new coordination of efforts, as these agencies seek to more efficiently and effectively enforce air carrier safety regulations and protect whistleblowers. In terms of discrimination defense, the most drastic impact of this MOU will come from the FAA pointing each whistleblower claiming discrimination in the direction of the Department of Labor, encouraging these individuals to contact OSHA and informing them of the ninety-day deadline. With the FAA aiding OSHA’s efforts in this way, employers will likely see fewer and fewer potential complainants missing their filing window.