Air Marshall on your Flight?

Until Robert Maclean blew the whistle on the government rules requiring air marshalls to wear business suits, ties and sports coats, a terrorist could easily spot an air marshall. McLean went public to MSNBC and advised the media of this rule. He also revealed that the air marshall program was being cut back on international flights in order to save hotel costs. After he made his revelations, the rules quickly changed. However, for his troubles, Maclean was fired for violating security regulations. Finally, after seven years of legal battles (a bit longer than our usual discrimination, sexual harassment or wrongful termination case takes here in California), the DC Circuit court has authorized him to seek reinstatement with back pay and benefits, the court ruling that these disclosures were part of the Whistle blower Protection Act.

This law, passed in 1989, prohibits retaliation against federal workers for disclosing mismanagement, waste of money and serious threats to safety or health. Curiously, when the TSA first promulgated the challenged dress code, and service cut back, the message was not marked sensitive or secret and was sent via un-encrypted text. It was then “retroactively” designated sensitive under agency rules.

I’ve highlighted this case for several reasons. First, you should be aware of the wide range of available laws protecting whistle blowers. At the federal level, some of the available laws are the Consumer Product Safety Act of 2008; Dodd Frank Wall Street Reform and Consumer Protection Act of 2010; Section 922, 924, 1057 Securities Exchange Act; Sarbanes Oxley Act of 2002, and/ many other industry-specific laws such as the banking industry (credit unions, insured institutions and specific monetary transactions). Under State Law, in addition to general protections for reporting suspected or actual illegalities under the California Labor Code 1102.5 and 98.6, there is a specific whistle blower protection for state employees under Government Code 12965.

Secondly, the Maclean case is instructive in that remedies not normally associated with court cases are available. In his case, reinstatement and back pay are available. While reinstatement is an available remedy in discrimination and wrongful termination cases under the California Government Code against any employer, public or private, it is a rare judge who will actually order reinstatement. The theory is that two people should not be made to work together. A judge may order enhanced financial recovery if he/she adjudges that as the better solution to ordering the employer to take back an employee. (In some recent cases of our’s involving long-term federal court class action litigation, the offending company has actually been sold and reinstatement may not be feasible or legally required. In those cases of sale of an entity, insurance continues to be the primary source of recovery for our clients.)

Finally, lessons learned are that you must be creative, have experienced legal counsel with deep pockets and the ability to withstand years of litigation at the highest levels of whistle blowing. As always, seek legal advise from someone with knowledge of the laws pertinent to your case. We practice employment law in California and have represented dozens of private and public industry employees in whistle blowing and sex harassment, discrimination based on age, sex, race and religion.