Constantine Cannon Partner Gordon Schnell Featured in Forbes on New FAA Whistleblower Legislation
As reported in Forbes last week (May 16), both the House and Senate recently passed the Federal Aviation Administration (FAA) Reauthorization Act of 2024, which among other things adds three provisions aimed at strengthening the protections for FAA whistleblowers. One of them would introduce a regular “peer review” of FAA whistleblower protections to ensure they are up to snuff. Another would provide the FAA a more active role in working with the Department of Labor to review whistleblower complaints. The third would impose additional penalties for violations of whistleblower protections.
Forbes reached out to Constantine Cannon whistleblower partner Gordon Schnell for his take on whether the new legislation would meaningfully advance the cause of FAA whistleblowers. This follows the publication’s extensive interview with Schnell earlier this month on the continuing Boeing whistleblower saga and the need for greater protections for aviation whistleblowers. Schnell’s take on the new legislation was mixed.
As for the contemplated peer review, Schnell said: “It could go either way depending on the makeup of the reviewers, how independent they truly are, any whistleblower predispositions they might have, and whether they are provided a full window into how the agency has handled whistleblower submissions/complaints.”
Schnell was equally tentative on the proposed power-sharing between the Department of Labor and FAA and whether an expanded role for the FAA in assessing whistleblower complaints would lead to stronger enforcement. The answer hinges on “how far the FAA is willing to go to protect its whistleblowers and punish companies committing retaliation.” Schnell’s concern is “whether the agency will feel ‘captive’ to the big industry players.”
In Schnell’s experience, agency enforcement is often tempered by dominant companies in highly concentrated industries like aviation. “We see this play out regularly in other industries where the DOJ or SEC wants to be more aggressive in taking enforcement action, but the overseeing agency does not want to upset the offending company or the status quo.” Schnell added that this perverse enforcement dynamic is especially prevalent “when the agency is part of the problem through lax oversight or acquiescence.”
Regarding the adequacy of additional penalties such as injunctive relief and compensatory damages, Schnell again hedged saying it would depend on the specific relief and the deterrent effect it might have. For meaningful injunctive relief, Schnell advocated for “an outside monitor to oversee the company’s whistleblower compliance program or an outside channel for whistleblowers to report concerns and complaints.” He also called for requiring the company “to terminate or otherwise discipline offending individuals.” And instead of compensatory damages for whistleblowers, which can be difficult to calculate, Schnell said minimum penalties or punitive damages “would likely work better” along with penalties against offending individuals.
All in, Schnell questioned whether the new legislation would adequately address the challenges aviation whistleblowers face. “The key pitfalls I see are still present — too short a window to file a claim, the need to go through administrative channels, lack of concrete, meaningful relief, insufficient deterrent, and lack of accountability or punishment for individual offenders.” In short, the new legislation provides a step in the right direction but much more needs to be done to protect our aviation whistleblowers.
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