Utah Whistleblower Hotline

Eighth Circuit – Wrongful termination claims by Airline whistleblower are not preempted by ADA

Each year, billions of dollars flow through an ever-decreasing number of airline companies.  So much money combined with the absence of any real competition can be the perfect storm for companies to engage in fraud and abuse.  When people speak up about safety violations or any other illegal or fraudulent activity, they help keep agencies and companies from endangering the public.  Unfortunately, they can often experience retaliation by their employer.  Whether they are harassed, transferred, demoted, or fired, whistleblowers rely on the protections afforded to them by law.  A recent decision helps ensure that many airline whistleblowers can count on both state and federal protections against wrongful termination.

Court says state wrongful termination claims are not superseded by ADA

In Watson v. Air Methods Corp., No. 15-1900, the Eighth Circuit made clear that the whistleblower protections within the federal Airline Deregulation Act (“the ADA”) do not preclude state claims for wrongful termination.  The case involved an in-flight air medic who made several complaints to his employer regarding FAA safety violations and was later fired. Watson complained to superiors about numerous safety violations, including a pilot who took a cell-phone video during flight.  The defendants argued that a state wrongful termination suit would force state courts to rule on whether taking cell-phone video is a violation of federal regulations.  The Court rejected this argument and noted that state courts have no authority to enforce federal regulations.  Preemption by the ADA requires that the action be one that would significantly affect the air carrier’s services.

The requirement to retain employees who complain about practices deemed unlawful by
a state court does not significantly impact the contractual service relationship between
the air carrier and its customers, even if the carrier turns out to be correct that the
complained-of practice is permitted by federal safety regulations.

Watson’s complaint itself did not affect the air carrier in a significant way.  Especially where, as the Court noted, “the likely consequence of reporting an alleged safety violation is an investigation by FAA safety officials, not the grounding of flights, so the connection to any “service” is too remote and attenuated to fall within the scope of the ADA’s pre-emption clause.”  For Watson, this means that the ADA’s whistleblower protection program works in conjunction with state whistleblower claims rather than preempting them.  In coming to this decision, the Court reversed its own precedent and changed the legal landscape within its jurisdiction.

Many other jurisdictions have sided with whistleblowers

The court joined with the Third, Ninth, and Eleventh Circuit courts who have taken the same position.  The Tenth Circuit, which has jurisdiction over Utah, has taken a similar approach when weighing state claims against employers who are also regulated by federal protections.  In Davies v. American Airlines, Inc., 972 F.2d 463, the Tenth Circuit decided a similar case involving a Railway employee.  Although that decision hinged on the union’s collective bargaining agreement, they confirmed that a state-law action for discharge in violation of public policy is available notwithstanding the availability of other remedies.

The Eighth Circuit’s decision in Watson means that air carriers may have to defend whistleblower claims on both the federal and state levels.  It also means that air carriers cannot eliminate wrongful discharge claims based on the ADA’s federal preemption.  This prevents the defendant from simply removing the case to federal court, and then dismissing the state law claim.  In Watson, the defendant used this tactic successfully on appeal, but the circuit court decision sends a clear message that airlines may have more liability exposure when retaliating against an employee who blows the whistle.

Protect airline whistleblowers, and you protect passengers

The importance of protecting the public from safety-risks and abuses was highlighted in April of 2008.  Several FAA inspectors revealed that their agency allowed Southwest Airlines to fly uninspected planes; some of which had begun to crack. The inspectors testified that their repeated complaints about safety violations had been thwarted, dismissed, or simply ignored.  The FAA transferred, demoted or fired inspectors who had submitted complaints about these safety violations.

Inspectors being sworn in at a Congressional hearing on the FAA’s oversight of airline safety. April 3, 2008 – Image Source

Southwest also hired away a key FAA figure, and FAA inspector Bobby Boutris testified that this was done to influence FAA oversight and “cherry-pick” inspectors who would not complain.  FAA manager Terry Lambert testified he was ordered to destroy his notes of inspections and conversations about what to do about the serious safety problems after the FAA upper management learned of the congressional investigation.

Preserving a whistleblower’s wrongful termination claims can help more people feel safe to come forward about safety violations. Those who are brave enough to step forward and shed light on abuse help make flying safer for anyone who sets foot on an airplane.  FAA whistleblowers speak out even when they know that they will likely be subjected to intimidation, discrimination and even loss of employment.  They deserve the most robust protections against retaliation that the law can offer.

The law firm of Christensen & Jensen is experienced in helping whistleblowers take advantage of every legal protection available.  We understand that confidentiality is extremely important in whistleblower cases.  Any communication with us is 100% confidential, even if we aren’t able to represent you.  If you or someone you know needs legal advice regarding whistleblowing protections against retaliation, contact us for a free legal review.