With the two recent crashes involving the Boeing 737 Max aircraft, aviation safety is in the news. One of the issues frequently discussed is how the FAA uses Designated Engineering Representatives (“DER”). A DER is a private-sector representative of the FAA. Although many DERs are independent of aircraft manufacturers, frequently the FAA allows an aircraft manufacturer like Boeing to have employees designated as a DER. This relationship creates the potential for the manufacturer to exert inappropriate pressure on the DER.
The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, commonly known as AIR 21, prohibits retaliation by manufacturers in the aviation industry against whistleblowers. Specifically, AIR 21 prohibits retaliation against any employee who “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.” 49 U.S.C. § 42121(a)(1).
In Yadav v. L-3 Communications Corp., for example, a DER was fired after complaining about his employer’s practice of reverse engineering certain aviation software and misrepresenting to the FAA its compliance with specific federal aviation regulations. U.S. D.O.L., Adm. Rev. Bd., ARB Case No. 08-090 (January 7, 2010). The ARB found that the DER’s safety complaint was a contributing factor in his termination.