Aviation Investment and Reform Act, P.L. 106-181, § 519 to be codified at 49 U.S.C. § 42121
SEC. 519. PROTECTION OF EMPLOYEES PROVIDING AIR SAFETY
INFORMATION.
(a) GENERAL RULE. Chapter 421 is amended by adding at the end the
following:
''SUBCHAPTER III WHISTLEBLOWER PROTECTION
PROGRAM
''§ 42121. Protection of employees providing air safety information
''(a) DISCRIMINATION AGAINST AIRLINE EMPLOYEES. No air
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 (or any person acting pursuant to
a request of the employee)
''(1) provided, caused to be provided, or is about to provide
(with any knowledge of the employer) or cause to be provided
to the employer or Federal Government information relating
to any violation or alleged violation of any order, regulation,
or standard of the Federal Aviation Administration or any
other provision of Federal law relating to air carrier safety
under this subtitle or any other law of the United States;
''(2) has filed, caused to be filed, or is about to file (with
any knowledge of the employer) or cause to be filed a proceeding
relating to any violation or alleged violation of any order, regulation,
or standard of the Federal Aviation Administration or
any other provision of Federal law relating to air carrier safety
under this subtitle or any other law of the United States;
''(3) testified or is about to testify in such a proceeding;
or
''(4) assisted or participated or is about to assist or participate
in such a proceeding.
''(b) DEPARTMENT OF LABOR COMPLAINT PROCEDURE.
''(1) FILING AND NOTIFICATION. A person who believes that
he or she has been discharged or otherwise discriminated
against by any person in violation of subsection (a) may, not
later than 90 days after the date on which such violation
occurs, file (or have any person file on his or her behalf)
a complaint with the Secretary of Labor alleging such discharge
or discrimination. Upon receipt of such a complaint, the Secretary
of Labor shall notify, in writing, the person named
in the complaint and the Administrator of the Federal Aviation
Administration of the filing of the complaint, of the allegations
contained in the complaint, of the substance of evidence supporting
the complaint, and of the opportunities that will be
afforded to such person under paragraph (2).
''(2) INVESTIGATION; PRELIMINARY ORDER.
''(A) IN GENERAL. Not later than 60 days after the
date of receipt of a complaint filed under paragraph (1)
and after affording the person named in the complaint
an opportunity to submit to the Secretary of Labor a written
response to the complaint and an opportunity to meet
with a representative of the Secretary to present statements
from witnesses, the Secretary of Labor shall conduct
an investigation and determine whether there is reasonable
cause to believe that the complaint has merit and notify,
in writing, the complainant and the person alleged to have
committed a violation of subsection (a) of the Secretary's
findings. If the Secretary of Labor concludes that there
is a reasonable cause to believe that a violation of subsection
(a) has occurred, the Secretary shall accompany
the Secretary's findings with a preliminary order providing
the relief prescribed by paragraph (3)(B). Not later than
30 days after the date of notification of findings under
this paragraph, either the person alleged to have committed
the violation or the complainant may file objections to
the findings or preliminary order, or both, and request
a hearing on the record. The filing of such objections shall
not operate to stay any reinstatement remedy contained
in the preliminary order. Such hearings shall be conducted
expeditiously. If a hearing is not requested in such 30-
day period, the preliminary order shall be deemed a final
order that is not subject to judicial review.
''(B) REQUIREMENTS.
''(i) REQUIRED SHOWING BY COMPLAINANT. The
Secretary of Labor shall dismiss a complaint filed
under this subsection and shall not conduct an investigation
otherwise required under subparagraph (A)
unless the complainant makes a prima facie showing
that any behavior described in paragraphs (1) through
(4) of subsection (a) was a contributing factor in the
unfavorable personnel action alleged in the complaint.
''(ii) SHOWING BY EMPLOYER. Notwithstanding a
finding by the Secretary that the complainant has
made the showing required under clause (i), no investigation
otherwise required under subparagraph (A)
shall be conducted if the employer demonstrates, by
clear and convincing evidence, that the employer would
have taken the same unfavorable personnel action in
the absence of that behavior.
''(iii) CRITERIA FOR DETERMINATION BY SECRETARY.
The Secretary may determine that a violation
of subsection (a) has occurred only if the complainant
demonstrates that any behavior described in paragraphs
(1) through (4) of subsection (a) was a contributing
factor in the unfavorable personnel action alleged
in the complaint.
''(iv) PROHIBITION. Relief may not be ordered
under subparagraph (A) if the employer demonstrates
by clear and convincing evidence that the employer
would have taken the same unfavorable personnel
action in the absence of that behavior.
''(3) FINAL ORDER.
''(A) DEADLINE FOR ISSUANCE; SETTLEMENT AGREEMENTS.
Not later than 120 days after the date of conclusion
of a hearing under paragraph (2), the Secretary of
Labor shall issue a final order providing the relief prescribed
by this paragraph or denying the complaint. At
any time before issuance of a final order, a proceeding
under this subsection may be terminated on the basis
of a settlement agreement entered into by the Secretary
of Labor, the complainant, and the person alleged to have
committed the violation.
''(B) REMEDY. If, in response to a complaint filed
under paragraph (1), the Secretary of Labor determines
that a violation of subsection (a) has occurred, the Secretary
of Labor shall order the person who committed such violation
to
''(i) take affirmative action to abate the violation;
''(ii) reinstate the complainant to his or her former
position together with the compensation (including
back pay) and restore the terms, conditions, and privileges
associated with his or her employment; and
''(iii) provide compensatory damages to the
complainant.
If such an order is issued under this paragraph, the Secretary
of Labor, at the request of the complainant, shall
assess against the person against whom the order is issued
a sum equal to the aggregate amount of all costs and
expenses (including attorneys' and expert witness fees)
reasonably incurred, as determined by the Secretary of
Labor, by the complainant for, or in connection with, the
bringing the complaint upon which the order was issued.
''(C) FRIVOLOUS COMPLAINTS. If the Secretary of Labor
finds that a complaint under paragraph (1) is frivolous
or has been brought in bad faith, the Secretary of Labor
may award to the prevailing employer a reasonable attorney's
fee not exceeding ,000.
''(4) REVIEW.
''(A) APPEAL TO COURT OF APPEALS. Any person
adversely affected or aggrieved by an order issued under
paragraph (3) may obtain review of the order in the United
States Court of Appeals for the circuit in which the violation,
with respect to which the order was issued, allegedly
occurred or the circuit in which the complainant resided
on the date of such violation. The petition for review must
be filed not later than 60 days after the date of the issuance
of the final order of the Secretary of Labor. Review shall
conform to chapter 7 of title 5, United States Code. The
commencement of proceedings under this subparagraph
shall not, unless ordered by the court, operate as a stay
of the order.
''(B) LIMITATION ON COLLATERAL ATTACK. An order
of the Secretary of Labor with respect to which review
could have been obtained under subparagraph (A) shall
not be subject to judicial review in any criminal or other
civil proceeding.
''(5) ENFORCEMENT OF ORDER BY SECRETARY OF LABOR.
Whenever any person has failed to comply with an order issued
under paragraph (3), the Secretary of Labor may file a civil
action in the United States district court for the district in
which the violation was found to occur to enforce such order.
In actions brought under this paragraph, the district courts
shall have jurisdiction to grant all appropriate relief including,
but not limited to, injunctive relief and compensatory damages.
''(6) ENFORCEMENT OF ORDER BY PARTIES.
''(A) COMMENCEMENT OF ACTION. A person on whose
behalf an order was issued under paragraph (3) may commence
a civil action against the person to whom such
order was issued to require compliance with such order.
The appropriate United States district court shall have
jurisdiction, without regard to the amount in controversy
or the citizenship of the parties, to enforce such order.
''(B) ATTORNEY FEES. The court, in issuing any final
order under this paragraph, may award costs of litigation
(including reasonable attorney and expert witness fees)
to any party whenever the court determines such award
is appropriate.
''(c) MANDAMUS. Any nondiscretionary duty imposed by this
section shall be enforceable in a mandamus proceeding brought
under section 1361 of title 28, United States Code.
''(d) NONAPPLICABILITY TO DELIBERATE VIOLATIONS.
Subsection (a) shall not apply with respect to an employee of an
air carrier, contractor, or subcontractor who, acting without direction
from such air carrier, contractor, or subcontractor (or such
person's agent), deliberately causes a violation of any requirement
relating to air carrier safety under this subtitle or any other law
of the United States.
''(e) CONTRACTOR DEFINED. In this section, the term 'contractor'
means a company that performs safety-sensitive functions
by contract for an air carrier.''.
(b) CONFORMING AMENDMENT. The analysis for chapter 421
is amended by adding at the end the following:
''SUBCHAPTER III WHISTLEBLOWER PROTECTION
PROGRAM
''42121. Protection of employees providing air safety information.''.
(c) CIVIL PENALTY. Section 46301(a)(1)(A) is amended by
striking ''subchapter II of chapter 421'' and inserting ''subchapter
II or III of chapter 421''.