[Congressional Record Volume 145, Number 42 (Wednesday, March 17, 1999)]
[Senate]
[Pages S2853-S2856]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KERRY (for himself and Mr. Grassley):
  S. 648. A bill to provide for the protection of employees providing 
air safety information; to the Committee on Health, Education, Labor, 
and Pensions.


                     aviation safety protection act

 Mr. KERRY. Mr. President, today I am introducing the Aviation 
Safety Protection Act of 1999 with Senator Grassley to increase overall 
safety of the airline industry by establishing whistleblower protection 
for aviation workers. I am honored to work on this important issue with 
Senator Grassley, who has long been a leader on whistleblower 
legislation.
  The Occupational Safety and Health Act (OSHA) properly protects both 
private and federal government employees who report health and safety 
violations from reprisal by their employers. However, because of a 
loophole, aviation employees are not covered by these protections. 
Flight attendants and other airline employees are in the best position 
to recognize breaches in safety regulations and can be the critical 
link in ensuring safer air travel. Currently, those employees who work 
for unscrupulous airlines face the possibility of harassment, negative 
disciplinary action, and even termination if they report violations.
  Aviation employees perform an important public service when they 
choose to report safety concerns. No employee should be put in the 
position of having to choose between his or her job and reporting 
violations that threaten the safety of passengers and crew. For that 
reason, we need a strong whistleblower law to protect aviation 
employees from retaliation by their employers when reporting incidents 
to federal authorities. Americans who travel on commercial airlines 
deserve the safeguards that exist when flight attendants and other 
airline employees can step forward to help federal authorities enforce 
safety laws.
  This bill would provide the necessary protections for aviation 
employees who provide safety violation information to federal 
authorities or testify about or assist in disclosure of safety 
violations. This legislation provides a Department of Labor complaint 
procedure for employees who experience employer reprisal for reporting 
such violations, and assures that there are strong enforcement and 
judicial review provisions for fair implementation of the protections.
  I want to acknowledge the leadership of Representative Sherwood 
Boehlert, Republican from New York, and Representative James Clyburn, 
Democrat from South Carolina, who have introduced the companion bill in 
the House. I also want to thank the Administration for their support of 
this legislation.
  This bill will provide important protections to aviation workers and 
the general public. I urge my colleagues on both sides of the aisle to 
join Senator Grassley and me in supporting it.
  Mr. President, I ask unanimous consent that the test of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 648

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Aviation Safety Protection 
     Act''.

     SEC. 2. PROTECTION OF EMPLOYEES PROVIDING AIR SAFETY 
                   INFORMATION.

       (a) In General.--Chapter 421 of title 49, United States 
     Code, is amended by adding at the end the following:

           ``SUBCHAPTER III--WHISTLEBLOWER PROTECTION PROGRAM

     ``Sec. 42121. Protection of employees providing air safety 
       information

       ``(a) Discrimination Against Airline Employees.--No air 
     carrier or contractor or subcontractor of an air carrier may 
     discharge an employee of the air carrier or the contractor or 
     subcontractor of an air carrier or otherwise discriminate 
     against any such employee with respect to compensation, 
     terms, conditions, or privileges of employment because the 
     employee (or any person acting pursuant to a request of the 
     employee)--
       ``(1) provided, caused to be provided, or is about to 
     provide or cause to be provided, to the 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;
       ``(2) has filed, caused to be filed, or is about to file or 
     cause to be filed, a proceeding 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;
       ``(3) testified or will testify in such a proceeding; or
       ``(4) assisted or participated or is about to assist or 
     participate in such a proceeding.
       ``(b) Department of Labor Complaint Procedure.--
       ``(1) Filing and notification.--
       ``(A) In general.--In accordance with this paragraph, a 
     person may file (or have a person file on behalf of that 
     person) a complaint with the Secretary of Labor if that 
     person believes that an air carrier or contractor or 
     subcontractor of an air carrier discharged or otherwise 
     discriminated against that person in violation of subsection 
     (a).
       ``(B) Requirements for filing complaints.--A complaint 
     referred to in subparagraph (A) may be filed not later than 
     90 days after an alleged violation occurs. The complaint 
     shall state the alleged violation.
       ``(C) Notification.--Upon receipt of a complaint submitted 
     under subparagraph (A),

[[Page S2856]]

     the Secretary of Labor shall notify the air carrier, 
     contractor, or subcontractor named in the complaint and the 
     Administrator of the Federal Aviation Administration of the--
       ``(i) filing of the complaint;
       ``(ii) allegations contained in the complaint;
       ``(iii) substance of evidence supporting the complaint; and
       ``(iv) opportunities that are afforded to the air carrier, 
     contractor, or subcontractor under paragraph (2).
       ``(2) Investigation; preliminary order.--
       ``(A) In general.--
       ``(i) Investigation.--Not later than 60 days after receipt 
     of a complaint filed under paragraph (1) and after affording 
     the person named in the complaint an opportunity to submit to 
     the Secretary of Labor a written response to the complaint 
     and an opportunity to meet with a representative of the 
     Secretary to present statements from witnesses, the Secretary 
     of Labor shall conduct an investigation and determine whether 
     there is reasonable cause to believe that the complaint has 
     merit and notify in writing the complainant and the person 
     alleged to have committed a violation of subsection (a) of 
     the Secretary's findings.
       ``(ii) Order.--Except as provided in subparagraph (B), if 
     the Secretary of Labor concludes that there is reasonable 
     cause to believe that a violation of subsection (a) has 
     occurred, the Secretary shall accompany the findings referred 
     to in clause (i) with a preliminary order providing the 
     relief prescribed under paragraph (3)(B).
       ``(iii) Objections.--Not later than 30 days after the date 
     of notification of findings under this paragraph, the person 
     alleged to have committed the violation or the complainant 
     may file objections to the findings or preliminary order and 
     request a hearing on the record.
       ``(iv) Effect of filing.--The filing of objections under 
     clause (iii) shall not operate to stay any reinstatement 
     remedy contained in the preliminary order.
       ``(v) Hearings.--Hearings conducted pursuant to a request 
     made under clause (iii) shall be conducted expeditiously and 
     governed by the Federal Rules of Civil Procedure. If a 
     hearing is not requested during the 30-day period prescribed 
     in clause (iii), the preliminary order shall be deemed a 
     final order that is not subject to judicial review.
       ``(B) Requirements.--
       ``(i) Required showing by complainant.--The Secretary of 
     Labor shall dismiss a complaint filed under this subsection 
     and shall not conduct an investigation otherwise required 
     under subparagraph (A) unless the complainant makes a prima 
     facie showing that any behavior described in paragraphs (1) 
     through (4) of subsection (a) was a contributing factor in 
     the unfavorable personnel action alleged in the complaint.
       ``(ii) Showing by employer.--Notwithstanding a finding by 
     the Secretary that the complainant has made the showing 
     required under clause (i), no investigation otherwise 
     required under subparagraph (A) shall be conducted if the 
     employer demonstrates, by clear and convincing evidence, that 
     the employer would have taken the same unfavorable personnel 
     action in the absence of that behavior.
       ``(iii) Criteria for determination by secretary.--The 
     Secretary may determine that a violation of subsection (a) 
     has occurred only if the complainant demonstrates that any 
     behavior described in paragraphs (1) through (4) of 
     subsection (a) was a contributing factor in the unfavorable 
     personnel action alleged in the complaint.
       ``(iv) Prohibition.--Relief may not be ordered under 
     subparagraph (A) if the employer demonstrates by clear and 
     convincing evidence that the employer would have taken the 
     same unfavorable personnel action in the absence of that 
     behavior.
       ``(3) Final order.--
       ``(A) Deadline for issuance; settlement agreements.--
       ``(i) In general.--Not later than 120 days after conclusion 
     of a hearing under paragraph (2), the Secretary of Labor 
     shall issue a final order that--

       ``(I) provides relief in accordance with this paragraph; or
       ``(II) denies the complaint.

       ``(ii) Settlement agreement.--At any time before issuance 
     of a final order under this paragraph, a proceeding under 
     this subsection may be terminated on the basis of a 
     settlement agreement entered into by the Secretary of Labor, 
     the complainant, and the air carrier, contractor, or 
     subcontractor alleged to have committed the violation.
       ``(B) Remedy.--If, in response to a complaint filed under 
     paragraph (1), the Secretary of Labor determines that a 
     violation of subsection (a) has occurred, the Secretary of 
     Labor shall order the air carrier, contractor, or 
     subcontractor that the Secretary of Labor determines to have 
     committed the violation to--
       ``(i) take action to abate the violation;
       ``(ii) reinstate the complainant to the former position of 
     the complainant and ensure the payment of compensation 
     (including back pay) and the restoration of terms, 
     conditions, and privileges associated with the employment; 
     and
       ``(iii) provide compensatory damages to the complainant.
       ``(C) Costs of complaint.--If the Secretary of Labor issues 
     a final order that provides for relief in accordance with 
     this paragraph, the Secretary of Labor, at the request of the 
     complainant, shall assess against the air carrier, 
     contractor, or subcontractor named in the order an amount 
     equal to the aggregate amount of all costs and expenses 
     (including attorney and expert witness fees) reasonably 
     incurred by the complainant (as determined by the Secretary 
     of Labor) for, or in connection with, the bringing of the 
     complaint that resulted in the issuance of the order.
       ``(4) Frivolous complaints.--A complaint brought under this 
     section that is found to be frivolous or to have been brought 
     in bad faith shall be governed by Rule 11 of the Federal 
     Rules of Civil Procedure.
       ``(5) Review.--
       ``(A) Appeal to court of appeals.--
       ``(i) In general.--Not later than 60 days after a final 
     order is issued under paragraph (3), a person adversely 
     affected or aggrieved by that order may obtain review of the 
     order in the United States court of appeals for the circuit 
     in which the violation allegedly occurred or the circuit in 
     which the complainant resided on the date of that violation.
       ``(ii) Requirements for judicial review.--A review 
     conducted under this paragraph shall be conducted in 
     accordance with chapter 7 of title 5. The commencement of 
     proceedings under this subparagraph shall not, unless ordered 
     by the court, operate as a stay of the order that is the 
     subject of the review.
       ``(B) Limitation on collateral attack.--An order referred 
     to in subparagraph (A) shall not be subject to judicial 
     review in any criminal or other civil proceeding.
       ``(6) Enforcement of order by secretary of labor.--
       ``(A) In general.--If an air carrier, contractor, or 
     subcontractor named in an order issued under paragraph (3) 
     fails to comply with the order, the Secretary of Labor may 
     file a civil action in the United States district court for 
     the district in which the violation occurred to enforce that 
     order.
       ``(B) Relief.--In any action brought under this paragraph, 
     the district court shall have jurisdiction to grant any 
     appropriate form of relief, including injunctive relief and 
     compensatory damages.
       ``(7) Enforcement of order by parties.--
       ``(A) Commencement of action.--A person on whose behalf an 
     order is issued under paragraph (3) may commence a civil 
     action against the air carrier, contractor, or subcontractor 
     named in the order to require compliance with the order. The 
     appropriate United States district court shall have 
     jurisdiction, without regard to the amount in controversy or 
     the citizenship of the parties, to enforce the order.
       ``(B) Attorney fees.--In issuing any final order under this 
     paragraph, the court may award costs of litigation (including 
     reasonable attorney and expert witness fees) to any party if 
     the court determines that the awarding of those costs is 
     appropriate.
       ``(c) Mandamus.--Any nondiscretionary duty imposed by this 
     section shall be enforceable in a mandamus proceeding brought 
     under section 1361 of title 28.
       ``(d) Nonapplicability To Deliberate Violations.--
     Subsection (a) shall not apply with respect to an employee of 
     an air carrier, or contractor or subcontractor of an air 
     carrier who, acting without direction from the air carrier 
     (or an agent, contractor, or subcontractor of the air 
     carrier), deliberately causes a violation of any requirement 
     relating to air carrier safety under this subtitle or any 
     other law of the United States.
       ``(e) Contractor Defined.--In this section, the term 
     `contractor' means a company that performs safety-sensitive 
     functions by contract for an air carrier.''.
       (b) Conforming Amendment.--The analysis for chapter 421 of 
     title 49, United States Code, is amended by adding at the end 
     the following:

           ``SUBCHAPTER III--WHISTLEBLOWER PROTECTION PROGRAM

``42121. Protection of employees providing air safety information.

       (c) Civil Penalty.--Section 46301(a)(1)(A) of title 49, 
     United States Code, is amended by striking ``subchapter II of 
     chapter 421,'' and inserting ``subchapter II or III of 
     chapter 421,''.
                                 ______