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Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century (AIR21)
Public Law 106-181, April 5, 2000
49 USC Section 42121
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 the 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
or 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-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 - Not withstanding 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 brining 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
$1,000.
(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.
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