# Presentation: 685808

## Whistleblower Protection Program

**OSHA**

**FAA**

**Notes:**
COVER PAGE

## (AIR 21)Wendell H. Ford Aviation Investment and Reform Act for the 21st Century 

**PUBLIC LAW 106-181, SECTION 519**
**PROTECTION OF EMPLOYEES  PROVIDING AIR SAFETY INFORMATION. **
**SUBCHAPTER III-- Whistleblower Protection Program**
**codified at 49 U.S.C. § 42121 and**
**49 U.S.C.  § 46301**

**Notes:**
AIR 21 = Aviation Investment and Reform Act of 21st Century.

OSHA refers to as “AIR 21” complaints.

Bill signed into Law on April 5, 2000

Codified at 49USC 42121

## Gene Kirkendall   FAA, Whistleblower Protection Program Manager AFS-3

***U. S. Department of Transportation***
**Federal Aviation Administration **
**Flight Standards Service**
**Air Transportation Division**
**Washington, DC 20591**** **

**Notes:**
NATIONAL WBPP OFFICE

AGENCY WIDE PROGRAM
ADMINISTRATOR DELEGATED TO FLT  STANDARDS SERVICE AND APPOINTED THE MANAGER ON APRIL 17, 02

ROUTING, AFS-200W ESTABLISHED JULY 29, 02
FS ORDER 1100.1 CHAPTER 3 PARA 302.

## What is the Whistleblower Protection Program? 

**This law protects air carrier, contractor and subcontractor employees **
**Against discrimination **
**for reporting air safety information.  **

**Notes:**
NOT GENERAL AVIATION
NOT FAA EMPLOYEES
AIR CARRIER AND CONTRACTORS ONLY.

FAA EMPLOYEES ARE COVERED UNDER
TITLE 5 USC SECTION 2302 (B)

## Who is covered by the Program? 

**ALL employees of: **
**An air carrier; **
**An air carrier contractor,and**
**A subcontractor of an air carrier.**

**Notes:**
1. ANYONE USED BY AN AIR CARRIER IS AN “EMPLOYEE” THEY DO NOT HAVE TO BE ON THE PAYROLL.  121.1 (B) AND 135.1 (a) (2)
2. AIR CARRIER BY DEFINITION, DOES NOT HAVE TO HOLD AN AIR CARRIER CERTIFICATE.
3. CONTRACTORS= BOEING, DRUG TESTING LABS, PARTS MANUFACTURERS, REPAIR STATIONS,TRANING CENTERS, ETC.
4. SUBCONTRACTORS= INTERIOR MANUFACTURERS, FUEL CELL REPAIR, AVIONICS SHOPS, ETC.

US AIR CARRIERS
121- APPROX 200
135- APPROX 3,500
CONTRACTORS- ?????
SUBCONTRACTORS-???????

## An employer can not discriminate against the employee because they 

**provided, **
**cause to be provided, or**
**are about to provide to the employer or to the Federal Government **
**information relating to any violation or alleged violation of any order, regulation, or standard of the FAA or any other provision of Federal law relating to air carrier safety.  **

**Notes:**
Elements of a Prima facie case
(1) the employee is a covered employee
(2) the employer is an air carrier, air carrier contractor or subcontractor
(3) the employee engaged in a protected activity; 
(4) the company knew the employee engaged in the protected activity; 
(5) the employee suffered an unfavorable personnel action; and, 
(6) the protected activity was likely a contributing factor in the unfavorable personnel action

## Also, an employer can not discriminate against them because they 

**filed, **
**caused to be filed, or **
**are about to file a proceeding relating to any violation or alleged violation of any order, regulation, or standard of the FAA or any other provision of Federal law relating to air carrier safety. **** **

**Notes:**
MORE PROTECTED ACTIVITIES

## What is the criteria for protection? 

**1. They must be a **_**covered employee**_**, and**
**2. The information they report must be about a **_**violation or alleged violation**_** related to air carrier safety, and  **
**3. They must, believe they have been **_**discriminated against**_** for **_**reporting the safety information.**_

**Notes:**
ALLEGED VIOLATION - EMPLOYEE DOES NOT HAVE TO KNOW WHICH REG. AS LONG AS THEY, IN GOOD FAITH, THOUGHT THAT WHAT THEY REPORTED WAS A VIOLATION.

## What is Air Carrier Safety Information? 

**Any safety information they believe is a **
**violation of an FAA regulation, order, or standard, or**
**any other federal law that implicates any aspect of the safety and/or security of U.S. air carriers. **

**Notes:**
RELATED TO AIR CARRIER SAFETY, (NOT PERSONAL SAFETY), 
AND 
MUST HAVE BEEN REPORTED TO THE EMPLOYEER OR FED GOV PRIOR TO THE ALLEGED DISCRIMINATORY ACTION. 

## Examples of safety information 

**Falsification of records **
**Flight and Rest requirements **
**Inadequate required training **
**Improper manufacturing procedures**
**Crewmember medical qualifications **

**Security breaches **
**Aircraft parts production**
**Improper repairs**
**Maintenance practices**
**Instructions not to write up discrepancies **
** ****etc.**

**Notes:**
SOME EXAMPLES FROM ACTUAL COMPLAINTS.
NOT INTENDED TO LIST ALL.

## What is Discrimination?

- Any Unfavorable Personnel Action or Disparate Treatment With Respect to Compensation, Terms, Conditions, or Privileges of Employment

**Notes:**
THE EMPLOYEE MUST HAVE BEEN SINGLED OUT AND TREATED DIFFERENTLY THAN OTHER EMPLOYEES THAT DID NOT ENGAGE IN A PROTECTED ACTIVITY. 

OSHA MUST SHOW THAT THE EMPLOYER TOOK THIS ACTION BECAUSE THEY KNEW THE EMPLOYEE “BLEW THE WHISTLE” AND THIS ACTION IS IN RETALIATION.

##  Examples of Discrimination

**Retaliation **
**Intimidation **
**Threats**
**Reprisals**
**Reprimands**

**Suspension**
**Change of working condition **
**Demotion**
**Discharge**

**Notes:**
ALLEGED VIOLATION= DOES NOT HAVE TO BE SUBSTANTIATED FOR THE EMPLOYEE TO BE COVERED UNDER THE LAW

AS LONG AS THE EMPLOYEE BELIEVES IT WAS A VIOLATION

## When should they file?

**Complaints must be filed **_**within 90 days**_** after the date on which the **_**alleged discrimination occurred**_
**They may also notify the FAA. **
**The FAA will forward their complaint to OSHA.**_**  **__** **_

**Notes:**
NOT 90 DAYS AFTER THEY MADE THE SAFETY REPORT.
SOME EMPLOYEES ARE MORE COMFORTABLE TALKING TO FAA

OSHA CONSIDERS A COMPLAINT RECEIVED BY THE FAA WITHIN THE 90 DAYS,  AS HAVING BEEN FILED IN A TIMELY MANNER.

## Who enforces the law?

** ****FAA and the Secretary of Labor have joint responsibilities.**
**FAA investigates allegations related to safety.**
**DOL investigates allegations of discrimination**
**through The Occupational Safety and Health Administration (OSHA).**

**Notes:**
FAA INVESTIGATES SAFETY ISSUES ONLY!
OSHA INVESTIGATES ALLEGIATION OF DISCRIMINATION!

## Additional Civil Penalty, 

**In addition to any safety related enforcement action,  **
**FAA may issue civil penalties for violations of 49 U.S.C. § 42121.**

**Notes:**
THREE PART PROCESS.

1. FAA MAY TAKE APPROPRIATE ENFORCEMENT ACTION CONCERNING THE ALLEGED SAFETY VIOLATION
2.. DOL MAY TAKE APPROPRIATE ENFORCEMENT ACTION CONCERNING THE ALLEGED DISCRIMINATION AND
3. FAA MAY ISSUE A CIVIL PENALTY BACED ON A FINDING BY THE DOL THAT THE COMPANY VIOLATED 49 USC 42421. 

## OSHA’s Responsibility

**Investigate complaints of discrimination and may order a violator to; **
**Abate the violation,**
**Reinstate the complainant to his or her former position with back pay, and**
**Award compensatory damages, including attorney fees.  **

**Notes:**
THE SECRETARY OF LABOR DELEGATED THE AUTHORITY AND ASSIGNMENT OF RESPONSIBILITY TO ENFORCE THE PROVISIONS OF THE WHISTLEBLOWER PROTECTION PROGRAM TO THE ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH (OSHA)

## FAA/OSHA MOU

**FAA and OSHA entered into a Memorandum of Understanding in March 2002 **
**Facilitate coordination and cooperation and **
**agreed to follow a process for supporting enforcement of the provisions. **

**Notes:**
Signed by FAA Administrator Jane Garvey
Signed by Assistant Sec OSHA/DOL John Henshaw
Defines responsibilities of FAA & OSHA/DOL

FAA and OSHA will carry out their statutory responsibilities independently, 
However, the agencies have agreed that working closely together will enhance aviation safety and maximize the timely exchange of information in areas of mutual interest.

## Special Enforcement Consideration 

**FAA Order 2150.3, Compliance and Enforcement Program, contains FAA policy and procedures on providing immunity from enforcement action. **

**Notes:**
WHISTLEBLOWERS MUST HAVE SOME TYPE OF INCENTIVE AND SPECIAL CONSIDERATION FOR GIVING US THE SAFETY INFORMATION. THIS IS THE CURRENT POLICY THAT COVERS WHISTLEBLOWERS.

NOTE; THEY DO NOT HAVE WB PROTECTION OR SPECIAL CONSIDERATION IF THEY;
WITHOUT DIRECTION FROM THEIR EMPLOYEER DELIBERATELY CAUSES A VIOLATION OF ANY REQUIREMENT RELATING TO AIR CARRIER SAFETY UNDER THIS SUBTITLE OR ANY OTHER LAW OF THE UNITED STATES.

## How do they  "BLOW THE WHISTLE?"

**Initial safety complaints may be made to the employer or**
**reported directly to a FSDO or**
**the FAA Safety Hotline at 1-800-255-1111 (Press 1 for main menu then press 1). **
**Air carrier security complaints should be reported directly to TSA **
**TSA Hotline at 1-866-289-9673.**

**Notes:**
ALL WHISTLEBLOWER COMPLAINTS START OFF AS A SAFETY ONLY COMPLAINT. 

THEN AFTER THEY MADE THE COMPLAINT AND THE COMPANY FINDS OUT IT WAS THEM, AND SUBSEQUENTLY THAKES SOME FORM OF RETALIATION, THEN IT BECOMES A WHISTLEBLOWER COMPLAINT.

## Do they need to request protection before they report a safety violation?

**No, they are already protected under the law.**
**Not Whistleblower until discrimination action occurs**

**Notes:**
THEY MAY ASK FOR GUIDANCE IF THEY FEAR RETALIATION.
INSPECTORS SHOULD ADVISE THEM OF THEIR RIGHTS AND THE PROGRAM, BUT THEY DO NOT HAVE TO CALL BEFORE MAKING THE SAFETY REPORT.

## Do they have to file the discrimination complaint with OSHA themselves?

**No, a representative such as a;**
**spouse, parent,**
**union representative, or**
**legal counsel can file a discrimination complaint with on their behalf.**

**Notes:**
ALL EMPLOYEES SHOULD BE ADVISED TO GET A CIVIL ATTORNEY TO HELP THEM FILE AND THROUGH ANY APPEAL PROCESS.

## Can they file anonymously?

**No, to be afforded the protection of the Program, they must give both FAA and OSHA their name. **

**Notes:**
WE CAN INVESTIGATE THE SAFETY ISSUE ANONYMOUSLY THROUGH THE SAFETY HOTLINE, BUT WE CAN NOT GIVE THEM WB PROTECTION IF WE DON’T KNOW WHO THEY ARE.

ALSO, THE EMPLOYER MUST HAVE HAD KNOWLEDGE THAT THEY BLEW THE WHISTLE.

## Can their identity be kept confidential?

**Yes, to a point, but certain safety information that is considered emergency in nature or time critical may require the immediate disclosure of their identity by the FAA in the interest of aviation safety.**
**Additionally, OSHA will identify them in the complaint once it is filed against the company.**** **

**Notes:**
FAA MUST KEEP THEIR IDENTY CONFIDENTIAL DURING OUR INVESTIGATION.

## What if the discrimination was more than 90 days ago?

**They may still file their complaint, **
**OSHA may dismiss their complaint as untimely.**
**However, they will be afforded appeal rights.  **
**FAA may still investigate the safety information they provide.**

**Notes:**
ADDITIONALLY, THIS MAY HELP THEM IF THEY FILE IN CIVIL COURT.

FAA STILL MUST LOOK INTO THE SAFETY ISSUES.

## Frivolous complaint provision 

**If the Secretary of Labor finds that a complaint 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.  **

**Notes:**
BAD FAITH = THE EMPLOYEE LIED OR TRIED TO USE THIS PROGRAM TO MASK THEIR ONGOING PERFORMANCE AND/ OR PERSONNEL PROBLEMS.

OSHA WILL DISMISS A COMPLAINT IF THEY DETERMINE IT DOES NOT MEET THE ELEMENTS OF THE LAW OR THAT THE CASE IS WITHOUT MERIT.

## Will FAA conduct an investigation?

**Yes, FAA will conduct an investigation of the alleged safety violations,**
**providing the investigation was not previously conducted as a safety only complaint,**
**or FAA will forward the complaint to the Transportation Security Administration (TSA) for air carrier security complaints. **** **

**Notes:**
IF THE COMPLAINT WAS PREVIOUSLY INVESTIGATED NO NEED TO CONDUCT ANOTHER UNLESS THERE ARE NEW ALLEGATIONS THAT HAVE NOT BEEN INVESTIGATED.
RESPONSE PROCEDURES ARE THE SAME.

TSA IS CONTINUING TO INVESTIGATE ON A VERBAL AGREEMENT. WE ALSO HAVE A FORMAL MEMORANDUM OF AGREEMENT WITH TSA TO CONTINUE TO INVESTIGATE WHISTLEBLOWER COMPLAINTS INVOLVING AIR CARRIER SECURITY ISSUES.

ANNEX 12 CONTAINS THE WB PROCEDURES, CURRENTLY MOA IS IN COORDINATION, SHOULD BE SIGNED SOON.

## Will they be notified of the results of the FAA investigation?

**Each complainant will receive a letter notifying them of the results**
**The investigation established that a violation may have occurred and appropriate enforcement or corrective action will be taken, or**
**has not established that a violation occurred and our case is closed. **

**Notes:**
THEY  = EMPLOYEE (WHISTLEBLOWER)

WE DO NOT GIVE SPECIFICS, ONLY WHETHER OR NOT WE WERE ABLE TO SUBSTANTIATE THAT A VIOLATION MAY HAVE OCCURRED.

OUR FINDINGS HAVE NO EFFECT ON THE SEPARATE OSHA CASE.

## FAA AUTHORITY

**TITLE 49--TRANSPORTATION **
**SUBTITLE VII--AVIATION PROGRAMS **
**PART A--AIR COMMERCE AND SAFETY**
** ****subpart iii--safety **
**CHAPTER 447--SAFETY REGULATION **

**Notes:**
AIR COMMERCE 1926  (ATC, CERT PILOTS &  NAVAIDS)

1938  CAA ACT, AIR CARRIER ROUTE CERTIFICATES AND AIRLINE FARES 

1940 CAB & CAA COMBINED

1958 ACT OF 58       FEDERAL AVIATION AGENCY CREATED

1967  DOT CREATED ,    FAA & ALL TRANSPORTATION UNDER DOT 

1996?  ACT OF 58 CODEFIED INTO  49  USC TRANSPORTATION

## Sec. 44701. General requirements                         (a) Promoting Safety.

**The Administrator of the Federal Aviation Administration shall promote safe flight of civil aircraft in air commerce by prescribing--**
** ****(1) minimum standards required in the interest of safety for ****appliances**** and for the ****design****, ****material****, ****construction****, ****quality of work****, and ****performance of aircraft****, ****aircraft engines****, and**** propellers****; **

**Notes:**
REGULATIONS CONCERNING ALL ASPECTS OF AVIAION

INCLUDING PERIODS OF DUTY
(2)  inspecting, servicing, and overhauling aircraft, aircraft engines, propellers, and appliances;
 (B) equipment and facilities for, and the timing and manner of, the inspecting, servicing, and overhauling; and
 (C) private, to examine and report on the inspecting, servicing, and overhauling;
 (3) reserve supply of aircraft, aircraft engines, propellers, appliances, and aircraft fuel and oil, including the reserve supply of fuel and oil carried in flight; 
(4) maximum hours or periods of service of airmen and other employees of air carriers; and 
(5) regulations and minimum standards for other practices, methods, and procedure the Administrator finds necessary for safety in air commerce and national security. 

## FAA ORDERS

**49 USC 106 (f) Authority of the Secretary and the Administrator**
**Regulations, Rules, Orders, Circulars, Bulletins and other official pubs.**
**Inspector Handbooks, notices, etc.**

**Notes:**
ALLEGED VIOLATION OF FAA ORDER, STANDARD, OR REGULATION

CAIN’T VIOLATE AN FAA ORDER.  HOWEVER, THE EMPLOYEE CAN REPORT A COMPANY  NON COMPLIANCE WITH THE ORDER (MEETS 42121)

FAA HANDBOOKS ARE “ORDERS”
FAA ORDER 8300.10 MAINT
FAA ORDER 8400.10 OPS

## FAA STANDARDS, REGULATIONS 

**14 CFR Chapter I **
**Subchapter A- Definitions**
**Part 1- Definitions and abbreviations**

**Notes:**
PART 1 DEFINITIONS

“AIR CARRIER” -  means a person who undertakes directly by lease, or other arrangement, to engage in air transportation.
"AIR TRANSPORTATION" means foreign air transportation, interstate air transportation, or the transportation of mail by aircraft.

NOTE;
THE DEFINITION OF AN “AIR CARRIER” DOES NOT STATE THEY HAVE TO HAVE AN AIR CARRIER CERTIFICATE.

THE CERTIFICATE IS REQUIRED BY PART 119.

## FAA Regulations

**Aircraft, Part 21, 25, 33, 35, 39, 43**
**Airmen, Part 61, 63, 65, 67**
**Air traffic, Part 91**
**Air carrier Part 119, 121, 129, 135,**
**Airports, 139**
**Schools, Part 141, 142, 145, 147**
**Hazmat Part 172, 173, 175**

**Notes:**
MOST COMMON REGS APPLICABLE TO  AIR CARRIER EMPLOYEES

21-39 AIR- ACFT CERT -   MIDOS,     ACO’S
43, 47	-AFS-300
61 	-AFS-800
63	-AFS-200
65 	-ATC, AFS-200 & 300
67 	-AAM-1
91 	-AFS-800
119,121,	-AFS-200
129,135 	“

## Security Regulations 

**U.S. Dept of Homeland Security,**
**Transportation Security Administration (TSA)**
**Old Part 107 Airport security **
**(now 49 USC 1542)**
**Old Part 108 Airplane operator security**
** ****(now 49 USC 1544)**
**Old Part 109 Indirect air carrier security**
** ****(now 49 USC 1548)**

**Notes:**
OLD FAA REGS TRANSFERRED TO TSA ON 02-17-02
107     AIRPORT  SECURITY
108      AIR CARRIERS
109      FREIGHT FOWARDERS

Associate Under Secretary for Inspections (TSA) has responsibility to conduct investigations.

## Complaints are received from;

**FAA WBPP Hotline,**
**FAA Safety Hotline,**
**FAA Web page, (electronic form)**
**DOT OIG Hotline, **
**OSHA field offices and **
**FAA field offices,**

**Notes:**
OSHA COMPLAINTS  Hotline # 1-800-321-6742
FAA Hotline 1-800-255-1111

WORKSHEET- NEED SAFETY ISSUE

NEED SAFETY COMPLAINT EVEN IF CLOSED UNTIMELY

NOTE:
FSDO ASI RECEIVES INITIAL COMPLIANT.  INFORM COMPLAINANT TO CONTACT OSHA, GIVE THEM THE NUMBER OF THE REGIONAL COORDINATOR AND INFORM THEM THEY HAVE 90 DAYS FROM THE DISCRIMINATION OCCURRENCE. 

## OSHA Discrimination Investigation

**The Department of Labor, through OSHA conducts an investigation concerning the allegations of discrimination. **** **

**Notes:**
FAA DOES NOT ADDRESS THE DISCRIMINATION, THAT IS OSHA’S JOB

FAA/OSHA MOU IDENTIFIES REQUIRED PROCEDURES TO COORDINATE AND SHARE INFORMATION DURING THE JOINT INVESTIGATION.

## DOL issues a final order of finding,

**The FAA issues civil penalty action against the company for violating the whistleblower law.**** **

**Notes:**
49 USC 46301 CIVIL PENALITIES WAS ALSO AMENDED TO ALLOW FAA TO ASSESS CP’S AGAINST PERSONS THAT VIOLATE THE WBPP.

THIS ACTION IS TAKEN AFTER ALL APPEALS ARE OVER AND THE DOL ORDER BECOMES FINAL.

##  FAA Whistleblower Hotline

**Is for filing a whistleblower complaint **
_**after**_** they have been involved in a protected activity and **
**received some type of discrimination.**
** **_**It is not the place to blow the whistle.**_**  **
**1-800-255-1111 **

**Notes:**
REPORT THE SAFETY ISSUE FIRST.
WB HOTLINE IS FOR AFTER THE FACT AND AFTER THE DISCRIMINATION.

## More information

**www.faa.gov/safety/programs_initiatives/aircraft_aviation/whistleblower**

**Notes:**

LOTS OF INFORMATION, INFORM EMPLOYEES OF WEB SITE.

AIR 21
Title 49 USC 42121
8400.10 and 8300.10 will be ADDED SOON
A/C 120-WBPP will be ADDED SOON
FAA/OSHA MOU