OSHA Orders Southern Air to Withdraw Lawsuit and Pay $7.9 Million to Whistleblowers

Southern Air filed a defamation lawsuit against the former employees in Connecticut Superior Court in May 2008 after some of the workers raised air carrier safety concerns with Southern Air, OSHA and the Federal Aviation Administration (FAA). The workers, all former flight crew members, subsequently filed a whistleblower complaint with OSHA.

OSHA's investigation found that the company's lawsuit was filed in retaliation for the workers' protected activities under the whistleblower provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21). See OSHA Orders Air Carrier to Pay $400,000 to Employee Terminated for Raising Safety Concerns.

"This order sends a strong and clear message that these and other workers have the right to raise safety issues with their employers and regulatory agencies without fear of retaliation and intimidation," said U.S. Secretary of Labor Hilda L. Solis. "The Labor Department will vigorously investigate such allegations and, where merited, order appropriate remedies for workers."

As a result of its investigation, OSHA issued a notice of findings and order to Southern Air directing the airline to do the following:

• Withdraw its lawsuit.
• Pay the complainants $6,004,000 in lost future earnings, $1,800,000 in compensatory damages and $129,789 in legal fees and costs.
• Purge each complainant's personnel file and other records of all warnings, reprimands or derogatory references resulting from protected whistleblower activity.
• Refrain from mentioning the complainants' protected whistleblower activity or conveying any damaging information in response to third party inquiries.
• Provide all Southern Air crew members with copies of the FAA Whistleblower Protection Program poster and OSHA's notice to employees, and post these in each Southern Air facility.

The complainants and the airline have 30 days from receipt of the findings to file an appeal with the Labor Department's Office of Administrative Law Judges.

Southern Air: Lawsuit Filed for Defamatory Statements

Southern Air, however, announced on April 7 that it will appeal and seek a full evidentiary hearing through the appropriate channels within the Department of Labor.

"We strongly disagree with these findings and believe the underlying claims on which the OSHA Northeast Region based its decision are completely without merit," said Brian Neff, president of Southern Air. "We are also disappointed that OSHA's investigators chose to release these findings without first performing a thorough investigation into the matter, including notifying Southern Air of any facts upon which they were relying to support their findings and providing Southern Air with a full opportunity to respond."

According to Southern Air, the Connecticut Superior Court recently upheld the company's position in a ruling issued on February 17 in a related state court action. This state court action was the genesis for the litigation involving former Southern Air employees that is the subject of the findings OSHA released today.

Neff added that nowhere in OSHA's findings is there any allegation that Southern Air did not operate safely or violated any safety rules or regulations. "The Federal Aviation Administration has conducted numerous safety inspections over the past 12 months, and Southern Air has been found to be fully compliant with all applicable FAA regulations," he pointed out.

Neff also noted that the claim that Southern Air retaliated against the former employees in question is "specious." He stated that the Southern Air lawsuit against the former employees was filed only after these former employees made unprotected defamatory statements directed to Southern Air's customers and the business community that were intended to harm the company's operations. In fact, in the Connecticut Superior Court's decision, the court found that defamatory statements made outside of the OSHA context were not necessarily protected and upheld Southern Air's right to pursue such claims.

"This is not a case of 'whistleblowers' being dismissed or retaliated against; this is an issue of Southern Air exercising its right to protect its reputation and business against false claims," he said.