OSHA ignores expertise of FAA in case interpreting FARs

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Pilot fired after reporting possible FAA violations is reinstated

OSHA decides what a pilot’s reasonable belief of FARs

OSHA not hold pilot to higher standard of FAR knowledge

Debate as to which companies are responsible

OSHA does not refer to FAA on these Aviation Safety Issues

U.S. Department of Labor Orders Reinstatement of Massachusetts Pilot
Who Lost Job after Reporting a Safety Concern

 

BOSTON, MA - The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has ordered Jet Logistics Inc. (JLI) and 
New England Life Flight Inc. - doing business as Boston MedFlight (BMF) - to reinstate a pilot who lost his job after complaining about 
what he reasonably believed were violations of the Federal Aviation Administration (FAA) regulations.

While stationed at Hanscom Air Force Base in Bedford in December 2015, the pilot first voiced to JLI and BMF his apprehension about whether 
a new scheduling policy would provide pilots with required FAA rest time. In January 2016, he contacted the FAA to register his concerns. 
He was terminated in March 2016 after he declined two flight assignments because he believed he had not been given the time to rest mandated 
by regulation.

An OSHA investigation concluded the pilot was terminated for reporting safety concerns, a protected activity under the 
Wendell H. Ford Aviation Investment and Reform Act for the 21stCentury (AIR21). In addition to reinstating the employee and clearing his personnel 
file of any reference to the issues involved in the investigation, the Agency also ordered JLI and BMF to pay the pilot $133,616.09 in back wages 
and interest; $100,000 in compensatory damages; reasonable attorney fees; and to refrain from retaliating against the employee. The employers must 
also post a notice informing all employees of their whistleblower protections under AIR21.

“This pilot should be commended - not penalized - for raising legitimate safety concerns that can affect him, his co-workers, and the general public,” 
said Galen Blanton, OSHA Boston-area Regional Administrator.

The order may be appealed to the department's Office of Administrative Law Judges, but such action does not delay the effect of the preliminary
reinstatement order.

OSHA enforces the whistleblower provisions of AIR21 and 21 other statutes protecting employees who report violations of airline, commercial 
motor vehicle, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation 
agency, railroad, maritime, and securities laws. More information is available at www.whistleblowers.gov. 
For information about OSHA, visit http://www.osha.gov.

Having two federal agencies with duplicate jurisdiction over the same workplace is a problem and one which has been a reoccurring theme here:

 

December 6, 2012

OSHA/FAA RELATIONSHIP IS ALREADY AT ISSUE—THE SECRETARY LA HOOD SLIPPERY SLOPE

August 23, 2013

Vague OSHA/FAA MoU creates Redundant, perhaps Conflicting, Regulation of Cabin Crew Health

September 12, 2013

OSHA decision in face of FAA determination creates Conundrum

September 17, 2014

OSHA’s jurisdiction over Aircraft Worker Safety began; duplication of regulation?

January 9, 2015

OSHA may be grabbing more aviation safety from FAA

January 3, 2017

OSHA baggage handler decision may put the Administrator in a difficult position in 2017

 


This recent order of reinstatement and monetary award in excess of $250,000 raises some interesting regulatory issues.

 

  1. What legal entity was involved in the decision to terminate?

OSHA cites three companies as being in violation of the Wendell H. Ford Aviation Investment and Reform Act for the 21stCentury (AIR21)—(i)Jet Logistics Inc. and(ii) New England Life Flight Inc., doing business as(iii) Boston MedFlight. BMF asserts that it was not involved. The best evidence of what company and/or companies were involved would be the records required to be kept by the FAA. Qualification, training and flight/duty time documents provide the bases for determining which company was responsible for the operations at issue as well as the for the establishment of the policy about which the worker complained to the FAA and OSHA.

⇒Why shouldn’t the FAA be asked to provide this information?

  1. “What he reasonably believed were violations of the Federal Aviation Administration (FAA) regulation?”

The FARs require that a pilot be an expert on the rules relevant to her/his job. “Reasonable belief” of most of those rules, rather than total command of those requirements could result in unsafe conditions or even loss of life. OSHA’s judgment of what is a “reasonable” reading of 14 CFR Part 117 would not appear to be within its competence. The rules at issue were recently promulgated and require expertise to interpret.

⇒Why shouldn’t the FAA be asked to provide an interpretation?

  1. The termination, according to the OSHA report, was refusal to work

The OSHA report clearly states:

He was terminated in March 2016 after he declined two flight assignments because he believed he had not been given 
the time to rest mandated by regulation.

 

The OSHA Fact Sheet on AIR-21 states:

 

AIR21 does not expressly provide protection for an employee who refuses to work because of an alleged airline safety 
violation by an employer. The Secretary of Labor, however, interprets this statute to protect refusals to work

[1]when an employee has a reasonable belief that his or her working conditions are unsafe, 

and  

[2] he or she does not receive an adequate explanation from a responsible official that the conditions are safe.

So, the Secretary made a determination that the pilot’s belief that 14 CFR Part 117 was violated and thus satisfying [1] of the above test. HOWEVER, the statement is bereft of the required [2] not receive an adequate explanation from a responsible official that the conditions are safe.

 

The OSHA determination does not seem to meet its own requirements.


The lesson of this OSHA decision for airlines is that if an employee “whistleblows” to the company and/or the FAA, he/she is protected from any basis for termination. OSHA’s interpretation is that once ANY (reasonable in OSHA’s view= any) complaint is filed, the airline basically CANNOT terminate her/him.

The OSHA policy ignores whether the person blowing the whistle is held to the highest standard of knowledge of the rule, thus narrowing the range of reasonable. OSHA is clearly disinterested in utilizing the court-recognized expertise of the FAA to interpret its own rules or even to develop a fact=based statement of the facts.

Duplication of Jurisdiction has been abhorred by academicians, legislators, judges and even the public for good reasons. This case adds an example of why the rule against incursions by Agency A into Agency B’s jurisdiction is well founded.



 

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