OSHA and FAA Develop Program to Better Protect Aviation Whistleblowers

January 5, 2016

On Dec. 1, 2015, the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor and the Federal Aviation Administration (FAA) of the U.S. Department of Transportation issued a joint Memorandum of Understanding (MOU) that announces a new program of cooperation to protect whistleblowers and ensure air safety in the aviation industry.

OSHA and the FAA play distinct roles in protecting workers and airline passengers, and the MOU is a strong indication that the agencies will work more closely than ever to achieve their complementary goals.

The Relationship Between the FAA and OSHA

Under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. § 42121, the agencies have authority over two types of claims.

The FAA is authorized to investigate reports related to air carrier safety and to enforce a variety of sanctions against companies and individuals who violate federal safety regulations.

OSHA is responsible for investigating claims of retaliation under AIR21, which includes any adverse employment action taken against an employee as a result of his or her report of violations of orders, regulations or standards of the FAA, or any other federal law related to air safety.

While many complaints made to the FAA result in retaliation against the employee making the report and all retaliation complaints made to OSHA under AIR21 involve some belief of the violation of FAA rules by an employer, the two agencies have not previously formalized any information-sharing program. Under the recent MOU, the agencies have now both adopted a policy of sharing reports made to their respective investigators.

Details of the Collaboration

Per the MOU, OSHA has agreed to provide the FAA with copies of retaliation complaints, including the contact information for the complainant, and to share subsequent investigative findings, reports, and orders related to hearings and appeals.

The FAA has agreed to advise employees making safety violation reports that they should contact OSHA if they have experienced retaliatory discrimination (within 90 days of the employer’s conduct, as required by AIR21) and to keep OSHA informed of the outcome of all investigations into air carrier safety complaints.

The MOU also provides for quarterly and annual report summary exchanges so that both agencies can routinely confirm that all relevant reports have been shared as well as an agreement to share personnel for training purposes.

The MOU marks a positive step forward in the protection of aviation employees and the enforcement of crucial air safety regulations. The information-sharing program is an important acknowledgment by both agencies that whistleblower retaliation is an all too frequent consequence of safety complaints by conscientious employees and that employees who make reports are often raising serious safety concerns that deserve official investigation.

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