WHAT AIR CARRIERS, AIR OPERATORS AND PILOTS NEED TO KNOW ABOUT CIVIL LIABILITY UNDER THE PILOT RECORDS IMPROVEMENT ACT

By: John T. Van Geffen, Partner

2019 Copyright - Avialex Law Group, LLP - All Rights Reserved

 The Pilot Records Improvement Act of 1996 (PRIA), 49 U.S.C.S. §44703(h), formerly known as the Airline Pilot Hiring Safety Act, is intended to promote aviation safety through the hiring of qualified pilots by requiring Federal Aviation Regulations (FAR) Part 121 and 135 air carriers, 125 and 135 air operators, and 91(K) fractional ownerships operators to request, receive and evaluate a potential pilot hire’s employee file from the previous five years of employers. FAR Section 91.147 air tour operators are limited to PRIA’s requirements covering drug and alcohol testing records.

  As detailed in the FAA’s Advisory Circular No. 120-68H (supplemented by FAA Order 8000.88) and AFS-620 PRIA 012 (Version 1.4/Approved 5-12-2017), a pilot’s PRIA file is required to include records of training, experience, qualification and safety (disciplinary and drug and alcohol tests). Pilots seeking new employment must fill out request forms that release records from the FAA, previous employers and the National Driver Registry (NDR). The only items that are expressly prohibited from disclosure are records more than 5 years old, unless they concern revocation or suspension of an airman certificate or motor vehicle license (the FAA will report any formal closed certificate actions indefinitely). 

 What should a pilot expect? According to AC 120-68H a pilot should expect the protection specified in the PRIA statute (which is miminal) and “fair and timely treatment… concerning the process for the request, transfer, receipt, evaluation, and maintenance of the appropriate PRIA-related records.” While privacy is supposed to be protected by requiring potential employers to first obtain the pilot’s signature on the releases discussed above, there is no explicit recourse for a pilot who successfully contests the validity of his PRIA file under the statute. 

 Moreover, many hiring employers or former employers require pilots to sign a release from liability for records other than drug and alcohol testing records. But, as explicitly stated in AC 120-68H, any such releases do not apply if an employer furnishes information known to be false or maintained in violation of a criminal statute. While the FAA could initiate an enforcement action against an air carrier or operator who fails to comply with PRIA requirements, the only recourse for pilots under PRIA is to request a copy of their file and ask for corrections of inaccuracies and/or submission of a grievance to be included with their file. 

 So, what happens when a pilot believes his or her PRIA file contains something false or outside the scope of what was intended by PRIA? 

 Typical lawyer answer; it depends. Let me explain, or at least highlight the potential pitfalls, with two civil cases involving PRIA that arose in opposite sides of the country with completely opposite verdicts. 

 When an Employer is in the wrong

In the first scenario, in Nelson v. Tradewind Aviation, LLC, 155 Conn. App. 519 (February 24, 2015), a jury found that Tradewind Aviation hired Mr. Nelson as a second in command pilot on April 12, 2007; that Mr. Nelson attended the Tradewind’s mandatory training program; passed "ground school;" successfully completed a "flight check ride" and then went on to copilot 137 flights with 13 different PIC’s. Tradewind never issued Mr. Nelson a written negative performance review or disciplinary action.

 The jury additionally determined that Tradewind routinely employed only a third of its pilots during the six-month off-season and that during the period when Tradewind usually determined which pilots it would keep on, the Assistant Chief Pilot sent Mr. Nelson for a drug test. While Tradewind claimed the reason for the test was bloodshot eyes, fidgeting and failure to make eye contact—i.e., for cause, Tradewind indicated on the subject drug test intake forms that the test was “random selection”, not due to pilot performance. 

 While the test returned negative, Tradewind still advised Mr. Nelson that they were going to terminate his employment, suggesting Mr. Nelson should instead resign because it would “look better” to future employers. Mr. Nelson refused and Tradewind laid him off, issuing termination papers reflecting that he had been laid off due to “lack of work.” 

 Fast forward to Mr. Nelson’s application to a new air carrier and Tradewind’s response to the PRIA request stating that Mr. Nelson was “Terminated (Involuntary)” and that he had been removed from flying status for a “performance or professional competency reason”, providing a letter stating that Mr. Nelson was terminated for failing to follow company standards despite opportunities for improvement and additional training” and including a forwarding coversheet that stated "[The plaintiff's] probable cause drug test result. The [defendant] was concerned that poor performance may have been caused by the use of drugs." 

 On top of all this, Tradewind even failed to provide Mr. Nelson with the requisite twenty-day notice of receiving the PRIA request and then only sent Mr. Nelson copies of his successful training records but not copies of the file that Tradewind had provided to the prospective employer—i.e., Tradewind wanted to hide from Mr. Nelson that management had apparently not only changed the reason for termination, but had altered the drug test records and alleged disciplinary actions that did not exist in his file. 

 Obviously, Mr. Nelson’s job offer with the new employer was revoked and Mr. Nelson sued Tradewind for defamation with malice and for the intentional interference with a business expectancy. Mr. Nelson was awarded economic, noneconomic and punitive damages. 

 Employee expectations set too high

In the second scenario, Boring v. Alaska Airlines, 123 Wn. App. 187, (September 13, 2004), the Plaintiff sued for wrongful discharge in violation of public policy, defamation and invasion of privacy based on the belief that his previous employer was prohibited from disclosing in a PRIA response a disciplinary action that had been previously overturned. 

 In short, Mr. Boring had applied to Alaska Airlines and received an offer that was later revoked after receipt of a PRIA response from Mesa Air Group citing a disciplinary action wherein Mr. Boring had been suspended for insubordination. The suspension had been overturned following a grievance hearing before the pilots’ union and Mesa rescinded the termination and reinstated Boring’s employment without loss of pay.

 Mr. Boring claimed in his lawsuit that because PRIA does not require the disclosure of overturned disciplinary actions he was simply exercising his right to privacy by not mentioning the disciplinary action in his application. 

 The Court held that while PRIA recognizes the privacy rights of pilots in those records that air carriers and operators are required to provide to each other, PRIA neither prohibits air carriers from requiring pilot applicants to disclose disciplinary action that were subsequently rescinded, nor prohibits the firing of a pilot who falsely reports that there has been no such disciplinary action. “Neither the promotion of air safety through the hiring of qualified pilots nor the protection of the privacy of pilots as provided in the act is placed into jeopardy when an air carrier asks a pilot who applies for employment whether he or she has ever been suspended, terminated, or otherwise disciplined by any previous employer, regardless of whether the action was subsequently overturned, and no policy promulgated by the act permits such a pilot to lie or otherwise fail to reveal the information once it is requested.” (Id.At 18) 

 In other words, Alaska Airlines rescinded its job offer because Mr. Boring did not truthfully respond to questions during the hiring process, not because of the publication of a previously overturned disciplinary action. 

 What are the main differences between these two cases?

I would argue that in the first instance you have an employer that not only published unsubstantiated, if not malicious, information about a pilot that clearly contradicted the employer’s previous statements, but the employer willfully denied the pilot an opportunity to review and correct the record, whereas in the second instance you have the simple matter of an employer providing true, albeit superseded, information that is not expressly required by PRIA. 

 While those who practice law or work in HR may think this is an easy delineation to understand, the issues surrounding a pilot employee’s PRIA file can become murkier quickly when faced with the following situation:

 What happens when an employer has information (unsubstantiated or not) in an employee’s PRIA file that is not required to held or disclosed under PRIA and the employee has explicitly requested that the employer remove the document(s) from his or her file? 

 By way of example, our firm has represented two different pilots with similar complaints against the same airline. 

 In the first case John Doe had requested that his previous employer provide him with a copy of his PRIA file only to find out that the airline had included two non-safety sensitive HR complaints involving “failure to restock drink cart” and “failure to appear at work”. Obviously a pilot’s job description does not generally include restocking drink carts and in this case the client advised that the “failure to appear at work” writeup stemmed from him refusing to go in on his day off to act as a baggage handler. Luckily for the client, the airline was quick to respond and agreed to remove the infringing HR complaints.

 But what would happen if the Employer refused? 

 What would happen if the pilot had already lost a job opportunity before learning of the non-safety sensitive HR complaints?  

 In the second case, Jane Does’ PRIA file contained a corrective action form covering a personnel non-safety sensitive writeup not required by PRIA. While at first glance this would appear to simply fall under the “not-required-by-PRIA-but-still-true category”, Ms. Doe had made multiple requests that the infringing record be removed from her file. The airline employer promised to correct the file, but failed to do so and Ms. Doe had multiple employment offers revoked due to background checks that included the infringing corrective action form. 

 In Mr. Doe’s example there were no economic damages and the employer complied so there was no reason to go any further whereas in Mrs. Doe’s example there was clearly loss of income as a result of the employer’s publication and there is arguably no qualified privilege available under PRIA without showing “good faith compliance.”

 Conclusion

As the cases and examples above illustrate, case law on this topic is not yet fully developed, but there are definitely a couple clear takeaways for both pilots and air carriers/operators. 

 If you are a pilot, it is extremely important that you avail yourself of your right to request, receive, review, contest and/or correct your employee file. Keep in mind that if you wait until after a PRIA request is made to inspect your file, you will have to explain the situation to both your prospective and past employer. 

 For air carriers, air operators, 91K fractional owners, and 91.147 tour operators, it is essential that you train your staff on how to (i) maintain PRIA files, (ii) respond to PRIA requests, (iii) know what documentation should be included, and (iv) communicate with employees to ensure that no unnecessary liability exposure is created.