1. The Damages Available to Whistleblowers under AIR21
An employee who is nevertheless retaliated against for such whistleblowing may file a complaint within 90 days with the Department of Labor Occupational Safety and Health Administration (OSHA). In such an action, the whistleblower may potentially recover, among other remedies:
- attorneys’ fees and costs;
- back pay;
- reinstatement or front pay; and
- compensatory damages.
a. Attorneys’ fees and costs From the filing of the whistleblower’s complaint to a final decision, OSHA proceedings can take over 10 years and that is before potential appeals to federal court. The whistleblower’s attorneys’ fees and costs alone over such a time period can be very high.
b. Back pay The amount of back pay to which a whistleblower may be entitled can be sizeable, too. The whistleblower may need years to obtain new employment, and/or the new job may pay less. In either case, the air carrier or its contractor or subcontractoremployer may be liable for the difference in the monies the fired whistleblower would have made, absent termination.
The amount of recoverable back pay runs from the date of termination to the date of a judgment. As noted, that time period can be over 10 years. During that time, the former employer can ask in discovery how long the whistleblower was unemployed and what salary and benefits he or she got at the new job.
Normally, an economist provides an expert opinion on the amount of back pay owed. In running the calculations, the economist can factor-in all raises, bonuses, and benefits the whistleblower could reasonably have expected to make on the job, had he or she not been fired.
The amount awarded can be over a million dollars. In 2012, OSHA ordered AirTran Airways to pay a pilot more than $1 million in back wages and interest. According to OSHA’s news release, its investigation found reasonable cause to believe that the pilot’s termination was in retaliation for his reporting of mechanical malfunctions to the airline.
c. Front pay An air carrier and its contractors and subcontractors’ exposure for front pay can be even greater than that for back pay. Hagman v. Washington Mutual Bank, 2006 DOLSOX LEXIS 130, (Dec. 19, 2006) dealt with front pay compensation.
Front pay is available where reinstatement is not appropriate or possible, such as where the respondent-employer harbors such hostility toward the whistleblower, the work environment would be dysfunctional. Front pay is typically awarded for the amount of time it will take the complainant whistleblower to reach the salary and benefits he or she would have received, had he or she not been unlawfully terminated. Id. Front pay is compensation for the employee’s loss of future earnings and earning capacity until such time as the employee can reach the compensation level the air carrier would have paid.
Here again, an economist normally provides an expert opinion concerning the amount of monies owed. The calculations will depend on how much the whistleblower is earning at the time of trial and how long it is expected it will take the whistleblower’s work-related compensation to rise to the level the whistleblower would have been making had there been no firing. Depending on those factors, the claimed front pay damages can be in the millions of dollars.
d. Compensatory damages The whistleblower may also be entitled to compensatory damages. These damages are awarded to compensate for emotional pain and suffering (referred to in AIR21 matters as emotional and mental distress) and for out-of-pocket losses sustained from the termination.
Emotional distress damages tend to not be quite as large as the other recoverable damages. To establish emotional distress damages, the whistleblower testifies to the emotional pain and suffering their termination caused them. They can also call their mental health care provider to provide expert testimony about the emotional and mental toll their termination took on them. Afterwards, the whistleblower will argue for the amount of emotional distress damages they seek by analogizing to the written AIR21 opinions they claim are most factually similar to theirs and distinguishing other cases.
A case brought under the Surface Transportation Assistance Act (STAA) containing similar language for recovering compensatory damages as AIR21, Bishop v. United Parcel Service, 2013-STA-00004 (November 15, 2013), offers insight into the amount of emotional distress damages that may be available. The complainant in Bishop was awarded $100,000 in compensatory damages after testifying that the loss of his job led him to feel embarrassed, depressed, lose hobbies, depend on his family members for financial support, lose health insurance, and to have to face more onerous work requirements in his new job. While this is one of the larger compensatory damages awards for emotional distress, a whistleblower who suffered greater emotional distress could argue entitlement to a larger recovery.
As noted, the whistleblower may also claim compensatory damages for out-ofpocket costs sustained from the termination. Those can be large as well.
On top of that, a prevailing whistleblower is entitled to interest on all the above categories of damages and may also be entitled, among other remedies, to an order requiring the air carrier to refrain from terminating or discriminating against other whistleblowers.
A whistleblower may also claim additional protections – and additional damages – against a former employer under other statutes and the common law, and may assert claims for such damages in separate venues, outside of OSHA. Thus, air carriers and their vendors can wind up fighting a whistleblower’s lawsuits in multiple venues, and at the same time.