II

106TH CONGRESS

1ST SESSION S. 648

To provide for the protection of employees providing air safety information.

IN THE SENATE OF THE UNITED STATES

MARCH 17, 1999

Mr. KERRY (for himself and Mr. GRASSLEY) introduced the following bill;

which was read twice and referred to the Committee on Health, Education, Labor, and Pensions

A BILL

To provide for the protection of employees providing air

safety information.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Aviation Safety Protec5 tion Act’’.

6 SEC. 2. PROTECTION OF EMPLOYEES PROVIDING AIR SAFE7 TY INFORMATION.

8 (a) IN GENERAL.—Chapter 421 of title 49, United

9 States Code, is amended by adding at the end the fol10 lowing:
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1 ‘‘SUBCHAPTER III—WHISTLEBLOWER

2 PROTECTION PROGRAM

3 ‘‘§ 42121. Protection of employees providing air safe4 ty information

5 ‘‘(a) DISCRIMINATION AGAINST AIRLINE EMPLOY6 EES.—No air carrier or contractor or subcontractor of an

7 air carrier may discharge an employee of the air carrier

8 or the contractor or subcontractor of an air carrier or oth9 erwise discriminate against any such employee with re10 spect to compensation, terms, conditions, or privileges of

11 employment because the employee (or any person acting

12 pursuant to a request of the employee)—

13 ‘‘(1) provided, caused to be provided, or is

14 about to provide or cause to be provided, to the Fed15 eral Government information relating to any viola16 tion or alleged violation of any order, regulation, or

17 standard of the Federal Aviation Administration or

18 any other provision of Federal law relating to air

19 carrier safety under this subtitle or any other law of

20 the United States;

21 ‘‘(2) has filed, caused to be filed, or is about to

22 file or cause to be filed, a proceeding relating to any

23 violation or alleged violation of any order, regulation,

24 or standard of the Federal Aviation Administration

25 or any other provision of Federal law relating to air
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1 carrier safety under this subtitle or any other law of

2 the United States;

3 ‘‘(3) testified or will testify in such a pro4 ceeding; or

5 ‘‘(4) assisted or participated or is about to as6 sist or participate in such a proceeding.

7 ‘‘(b) DEPARTMENT OF LABOR COMPLAINT PROCE8 DURE.—

9 ‘‘(1) FILING AND NOTIFICATION.—

10 ‘‘(A) IN GENERAL.—In accordance with

11 this paragraph, a person may file (or have a

12 person file on behalf of that person) a com13 plaint with the Secretary of Labor if that per14 son believes that an air carrier or contractor or

15 subcontractor of an air carrier discharged or

16 otherwise discriminated against that person in

17 violation of subsection (a).

18 ‘‘(B) REQUIREMENTS FOR FILING COM19 PLAINTS.—A complaint referred to in subpara20 graph (A) may be filed not later than 90 days

21 after an alleged violation occurs. The complaint

22 shall state the alleged violation.

23 ‘‘(C) NOTIFICATION.—Upon receipt of a

24 complaint submitted under subparagraph (A),

25 the Secretary of Labor shall notify the air car-
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1 rier, contractor, or subcontractor named in the

2 complaint and the Administrator of the Federal

3 Aviation Administration of the—

4 ‘‘(i) filing of the complaint;

5 ‘‘(ii) allegations contained in the com6 plaint;

7 ‘‘(iii) substance of evidence supporting

8 the complaint; and

9 ‘‘(iv) opportunities that are afforded

10 to the air carrier, contractor, or subcon11 tractor under paragraph (2).

12 ‘‘(2) INVESTIGATION; PRELIMINARY ORDER.—

13 ‘‘(A) IN GENERAL.—

14 ‘‘(i) INVESTIGATION.—Not later than

15 60 days after receipt of a complaint filed

16 under paragraph (1) and after affording

17 the person named in the complaint an op18 portunity to submit to the Secretary of

19 Labor a written response to the complaint

20 and an opportunity to meet with a rep21 resentative of the Secretary to present

22 statements from witnesses, the Secretary

23 of Labor shall conduct an investigation

24 and determine whether there is reasonable

25 cause to believe that the complaint has
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1 merit and notify in writing the complain2 ant and the person alleged to have com3 mitted a violation of subsection (a) of the

4 Secretary’s findings.

5 ‘‘(ii) ORDER.—Except as provided in

6 subparagraph (B), if the Secretary of

7 Labor concludes that there is reasonable

8 cause to believe that a violation of sub9 section (a) has occurred, the Secretary

10 shall accompany the findings referred to in

11 clause (i) with a preliminary order pro12 viding the relief prescribed under para13 graph (3)(B).

14 ‘‘(iii) OBJECTIONS.—Not later than

15 30 days after the date of notification of

16 findings under this paragraph, the person

17 alleged to have committed the violation or

18 the complainant may file objections to the

19 findings or preliminary order and request a

20 hearing on the record.

21 ‘‘(iv) EFFECT OF FILING.—The filing

22 of objections under clause (iii) shall not op23 erate to stay any reinstatement remedy

24 contained in the preliminary order.
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1 ‘‘(v) HEARINGS.—Hearings conducted

2 pursuant to a request made under clause

3 (iii) shall be conducted expeditiously and

4 governed by the Federal Rules of Civil

5 Procedure. If a hearing is not requested

6 during the 30-day period prescribed in

7 clause (iii), the preliminary order shall be

8 deemed a final order that is not subject to

9 judicial review.

10 ‘‘(B) REQUIREMENTS.—

11 ‘‘(i) REQUIRED SHOWING BY COM12 PLAINANT.—The Secretary of Labor shall

13 dismiss a complaint filed under this sub14 section and shall not conduct an investiga15 tion otherwise required under subpara16 graph (A) unless the complainant makes a

17 prima facie showing that any behavior de18 scribed in paragraphs (1) through (4) of

19 subsection (a) was a contributing factor in

20 the unfavorable personnel action alleged in

21 the complaint.

22 ‘‘(ii) SHOWING BY EMPLOYER.—Not23 withstanding a finding by the Secretary

24 that the complainant has made the show25 ing required under clause (i), no investiga-
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1 tion otherwise required under subpara2 graph (A) shall be conducted if the em3 ployer demonstrates, by clear and con4 vincing evidence, that the employer would

5 have taken the same unfavorable personnel

6 action in the absence of that behavior.

7 ‘‘(iii) CRITERIA FOR DETERMINATION

8 BY SECRETARY.—The Secretary may de9 termine that a violation of subsection (a)

10 has occurred only if the complainant dem11 onstrates that any behavior described in

12 paragraphs (1) through (4) of subsection

13 (a) was a contributing factor in the unfa14 vorable personnel action alleged in the

15 complaint.

16 ‘‘(iv) PROHIBITION.—Relief may not

17 be ordered under subparagraph (A) if the

18 employer demonstrates by clear and con19 vincing evidence that the employer would

20 have taken the same unfavorable personnel

21 action in the absence of that behavior.

22 ‘‘(3) FINAL ORDER.—

23 ‘‘(A) DEADLINE FOR ISSUANCE; SETTLE24 MENT AGREEMENTS.—
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1 ‘‘(i) IN GENERAL.—Not later than

2 120 days after conclusion of a hearing

3 under paragraph (2), the Secretary of

4 Labor shall issue a final order that—

5 ‘‘(I) provides relief in accordance

6 with this paragraph; or

7 ‘‘(II) denies the complaint.

8 ‘‘(ii) SETTLEMENT AGREEMENT.—At

9 any time before issuance of a final order

10 under this paragraph, a proceeding under

11 this subsection may be terminated on the

12 basis of a settlement agreement entered

13 into by the Secretary of Labor, the com14 plainant, and the air carrier, contractor, or

15 subcontractor alleged to have committed

16 the violation.

17 ‘‘(B) REMEDY.—If, in response to a com18 plaint filed under paragraph (1), the Secretary

19 of Labor determines that a violation of sub20 section (a) has occurred, the Secretary of Labor

21 shall order the air carrier, contractor, or sub22 contractor that the Secretary of Labor deter23 mines to have committed the violation to—

24 ‘‘(i) take action to abate the violation;
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1 ‘‘(ii) reinstate the complainant to the

2 former position of the complainant and en3 sure the payment of compensation (includ4 ing back pay) and the restoration of terms,

5 conditions, and privileges associated with

6 the employment; and

7 ‘‘(iii) provide compensatory damages

8 to the complainant.

9 ‘‘(C) COSTS OF COMPLAINT.—If the Sec10 retary of Labor issues a final order that pro11 vides for relief in accordance with this para12 graph, the Secretary of Labor, at the request of

13 the complainant, shall assess against the air

14 carrier, contractor, or subcontractor named in

15 the order an amount equal to the aggregate

16 amount of all costs and expenses (including at17 torney and expert witness fees) reasonably in18 curred by the complainant (as determined by

19 the Secretary of Labor) for, or in connection

20 with, the bringing of the complaint that re21 sulted in the issuance of the order.

22 ‘‘(4) FRIVOLOUS COMPLAINTS.—A complaint

23 brought under this section that is found to be frivo24 lous or to have been brought in bad faith shall be
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1 governed by Rule 11 of the Federal Rules of Civil

2 Procedure.

3 ‘‘(5) REVIEW.—

4 ‘‘(A) APPEAL TO COURT OF APPEALS.—

5 ‘‘(i) IN GENERAL.—Not later than 60

6 days after a final order is issued under

7 paragraph (3), a person adversely affected

8 or aggrieved by that order may obtain re9 view of the order in the United States

10 court of appeals for the circuit in which

11 the violation allegedly occurred or the cir12 cuit in which the complainant resided on

13 the date of that violation.

14 ‘‘(ii) REQUIREMENTS FOR JUDICIAL

15 REVIEW.—A review conducted under this

16 paragraph shall be conducted in accord17 ance with chapter 7 of title 5. The com18 mencement of proceedings under this sub19 paragraph shall not, unless ordered by the

20 court, operate as a stay of the order that

21 is the subject of the review.

22 ‘‘(B) LIMITATION ON COLLATERAL AT23 TACK.—An order referred to in subparagraph

24 (A) shall not be subject to judicial review in any

25 criminal or other civil proceeding.
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1 ‘‘(6) ENFORCEMENT OF ORDER BY SECRETARY

2 OF LABOR.—

3 ‘‘(A) IN GENERAL.—If an air carrier, con4 tractor, or subcontractor named in an order

5 issued under paragraph (3) fails to comply with

6 the order, the Secretary of Labor may file a

7 civil action in the United States district court

8 for the district in which the violation occurred

9 to enforce that order.

10 ‘‘(B) RELIEF.—In any action brought

11 under this paragraph, the district court shall

12 have jurisdiction to grant any appropriate form

13 of relief, including injunctive relief and compen14 satory damages.

15 ‘‘(7) ENFORCEMENT OF ORDER BY PARTIES.—

16 ‘‘(A) COMMENCEMENT OF ACTION.—A per17 son on whose behalf an order is issued under

18 paragraph (3) may commence a civil action

19 against the air carrier, contractor, or subcon20 tractor named in the order to require compli21 ance with the order. The appropriate United

22 States district court shall have jurisdiction,

23 without regard to the amount in controversy or

24 the citizenship of the parties, to enforce the

25 order.
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1 ‘‘(B) ATTORNEY FEES.—In issuing any

2 final order under this paragraph, the court may

3 award costs of litigation (including reasonable

4 attorney and expert witness fees) to any party

5 if the court determines that the awarding of

6 those costs is appropriate.

7 ‘‘(c) MANDAMUS.—Any nondiscretionary duty im8 posed by this section shall be enforceable in a mandamus

9 proceeding brought under section 1361 of title 28.

10 ‘‘(d) NONAPPLICABILITY TO DELIBERATE VIOLA11 TIONS.—Subsection (a) shall not apply with respect to an

12 employee of an air carrier, or contractor or subcontractor

13 of an air carrier who, acting without direction from the

14 air carrier (or an agent, contractor, or subcontractor of

15 the air carrier), deliberately causes a violation of any re16 quirement relating to air carrier safety under this subtitle

17 or any other law of the United States.

18 ‘‘(e) CONTRACTOR DEFINED.—In this section, the

19 term ‘contractor’ means a company that performs safety20 sensitive functions by contract for an air carrier.’’.

21 (b) CONFORMING AMENDMENT.—The analysis for

22 chapter 421 of title 49, United States Code, is amended

23 by adding at the end the following:

‘‘SUBCHAPTER III—WHISTLEBLOWER PROTECTION PROGRAM

‘‘42121. Protection of employees providing air safety information.
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1 (c) CIVIL PENALTY.—Section 46301(a)(1)(A) of title

2 49, United States Code, is amended by striking ‘‘sub3 chapter II of chapter 421,’’ and inserting ‘‘subchapter II

4 or III of chapter 421,’’.

Æ