Whistleblower Retaliation

The law often involves the balancing of important principles that sometimes come into conflict. Whistleblower retaliation claims are a good example of this. One the one hand, the United States rests on a market economy that encourages open competition in the pursuit of profits. On the other hand, there are important regulations that businesses must follow, including regulations pertaining to workplace safety (e.g. OSHA and workers compensation law), public safety (e.g. transportation regulations), and financial security (e.g. public accounting standards).

The profit motive can cause some companies try get a competitive advantage by taking shortcuts instead of complying with applicable regulations. This is unfair to other companies who comply with the law and it often exposes employees and the public to unnecessary risks. For this reason, employees who objects to assisting their employer in efforts to avoid compliance with the law are protected from being fired or otherwise retaliated against. Whistleblower lawsuits are an important deterrent to such employer misconduct, thereby encouraging all companies to comply with the law.

While we do not vouch for the accuracy or objectivity of outside links, we can safely refer you to the following links for helpful information about whistleblower laws and their application:

1. This 2013 report by the Congressional Research Service identifies 40 federal whistleblower laws. workplacefairness.org provides a nice summary of state whistleblowing laws.
2. We handle many cases under transportation and financial whistleblower laws, including Sarbanes-Oxley, Dodd-Frank, AIR 21, and STAA. These cases originate with OSHA’s Whistleblower Protection Program and mature into Administrative Law Judge cases or federal court actions.
3. Kansas Human Rights Commission is a state agency that enforces laws about discrimination and retaliation (i.e., the employer retaliates against the employee for opposing discrimination or filing a complaint about it).

We have experience in many types of whistleblower claims, including:

Aviation Safety

The “AIR 21” Anti-Retaliation Law
The FAA regulates aviation safety. Employees of an “air carrier” or a contractor to an air carrier are protected from retaliation for insisting that federal regulations relating aircraft safety are followed. The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century was enacted on April 5, 2000, creating a whistleblower claim for such employees. It is popularly called “AIR 21.” These cases are adjudicated by the United States Department of Labor (DOL) and the Occupational Safety and Health Administration (OSHA). These cases can result in awards of reinstatement, back pay, front pay, and attorney fees. We often take these cases on a contingency fee basis — meaning there is no fee unless we get a recovery.

AIR 21 cases are but one example of whistleblower laws we enforce for our clients. See the Whistleblower Retaliation page for more information about our experience in whistleblower matters.

We are Based in An Aviation Hub
Wichita Kansas is known as the “Air Capital of the World.” Cessna and Beechcraft were founded in Wichita. Airbus has its largest engineering facility outside of Europe here. Spirit AeroSystems, the largest independent producer of commercial aerostructures, is based in Wichita. Hundreds of smaller businesses within the aviation industry are based in Wichita.

Being based in Wichita gives Graybill & Hazlewood access to knowledgeable people in the aviation industry. Don Peterson plays league pool weekly with two engineers who work in the aviation sector. Mark Kiefer has worked in the legal department of an international aviation corporation. Our location in Wichita gives Graybill & Hazlewood a decided technical advantage in litigating aviation whistleblower cases.

Experience That Matters
Defendants in AIR 21 cases tend to vigorously defend themselves by hiring large law firms and engaging in extensive discovery. By being careful to take cases with strong merit, and by working hard to obtain all of the needed documentation needed to prove our case, we have been successful in obtaining positive results for our clients.

For example, in April 2016, Donald Peterson and Sean McGivern tried a complex case to the US Department of Labor Administrative Law Judge, Scott Morris, obtaining a favorable decision for approximately $180,000.00, plus attorney’s fees.

We have battled large law firms in these cases, fearlessly going toe to toe with them. For example, in a case we filed against Bombardier, it hired a large international law firm with 20 offices around the world. This was a very aggressive law firm. In addition to defending the lawsuit, the law firm sued the US Department of Labor in Washington DC federal court to enjoin or stop the proceedings. The federal court properly rejected this out-of-bounds request. This law firm engaged in an all-too common practice of refusing to produce requested documents. Our persistence in repeatedly taking the issue to the Administrative Law Judge ultimately resulted in an important order leading Bombardier to produce documents important to our case. A copy of the Court’s order granting, in part, our motion for discovery sanctions may be viewed here.

As expected, Bombardier later filed a motion for summary judgment to have our case dismissed for lack of sufficient evidence. We opposed their motion by citation to specific documents we obtained after filing a motion to compel production of documents Bombardier had previously refused to produce. In 2014 we prevailed in defeating the motion for summary judgment. This ultimately resulted in a resolution of the case in a confidential settlement agreement. A copy of the ALJ decision denying summary disposition is available here. The proceeding was ultimately settled in a confidential settlement agreement.

Short Statute of Limitations for AIR 21 Claims — 90 days
AIR21 (49 U.S.C. § 42121) is a claimant-friendly statute protecting employees who challenge unsafe practices by commercial air carriers and their contractors and subcontractors. Perhaps to ensure that commercial air safety issues are addressed promptly, it has a very short statute of limitations – a plaintiff has just 90 days to file with the U.S. Department of Labor.

There are some situations where the 90-day period can be expanded. Under the doctrine of “equitable tolling,” Federal Courts will prevent a defendant from raising the statute of limitations defense under certain circumstances that would be unfair to the claimant. The 10th Circuit Court of Appeals has applied equitable tolling to the AIR21 statute where (1) the claimant first filed their claim in the wrong forum, but within 90 days, (2) later learned that it should have been filed with the DOL and immediately did so; and (3) the defendant was not harmed because it timely received notice of the original whistleblower claim, albeit having been filed in the wrong forum. Turgeau v. A.R.B., 446 F.3d 1052, 1061 (10th Cir. 2006). The court applied equitable tolling even though the original claim did not specifically refer to the AIR21 statutory claim, but instead pleaded a generalized whistleblower tort claim. The Tenth Circuit also noted that equitable tolling can be applied where the defendant actively mislead the claimant into not timely filing or where some unusual circumstances prevented the claimant from timely filing. Id. at 1055-56.

Therefore, if you feel you have been retaliated against for raising aviation safety or legal issues at work, you should contact an attorney immediately.

Railroad Safety
As with aviation safety, the US DOL and OSHA enforce federal law that prohibits retaliating against workers who raise safety related concerns in the rail industry.

Over-The-Road Trucking Safety
The DOL and OSHA also enforce whistleblower protection laws for employees in the trucking industry. Here too, our attorneys have substantial experience handling such matters. We have obtained favorable preliminary findings accompanied by reinstatement orders (see September 16, 2014 OSHA press release regarding Stericycle, and the notice Stericycle was ordered to post at its worksites). In 2017, another client had a favorable settlement of his STAA case that included reinstatement. This client refused to drive a tractor trailer under conditions that would render operation of the vehicle unsafe.

Workers Compensation Retaliation
Workers compensation is a creature of state law. Thus, unlike the types of claims discussed above, there is no federal protection. Fortunately, Kansas law prohibits an employer from retaliating against an employee for bringing a workers compensation claim. We have extensive experience in such matters.

Employees Who Report Fraud, Waste, and Abuse by Recipients of Federal Grants and Contracts.
We represent private sector clients fired in retaliation for reporting fraud, waste, and abuse in federal grants or contracts (example: Department of Health and Human Services). Their whistleblower claims arise from various laws, including the National Defense Authorization Act, 47 U.S.C. 4712, which is more favorable to employees than traditional antiretaliation laws.