Flying the Whistleblower-Unfriendly Skies

The law firm Katz, Marshall & Banks exposed another front in the evolving war to silence whistleblowers: the airline industry.

Last week, the firm wrote to the Federal Aviation Administration (FAA) and United Airlines condemning United’s use of a confidentiality agreement that forbids employees from discussing the subject of internal misconduct investigations without first obtaining the company’s permission. United’s confidentiality agreement came to light in a wrongful termination lawsuit filed by 13 former flight attendants who were fired for refusing to work on a flight with unresolved security issues. According to the law firm, the plaintiffs "were concerned that the agreement United had forced them to sign effectively prohibited them [from] obtaining counsel and reporting the facts of their terminations to appropriate agencies."

A similar confidentiality agreement used by federal contractor KBR was also discovered during civil litigation. Last week, the Securities and Exchange Commission (SEC) fined KBR $130,000 after finding that the provision violated the SEC’s whistleblower protection rule. KBR will modify the agreement to make it clear that employees can report possible violations without having to obtain KBR’s permission and without fear of retaliation.

United, KBR, and humanitarian assistance organization International Relief and Development (IRD) are just three of a growing list of companies outed in recent months for having non-disclosure and confidentiality policies that stifle whistleblowers. IRD used a "non-disparagement" agreement, which forbids current or former employees from making disparaging comments about the company or any of its current or former officers and employees.

The State Department’s Office of Inspector General recently reported on the confidentiality policies of State’s 30 largest contractors, including DynCorp International, SAIC, General Dynamics, and Academi (formerly known as Blackwater). It found that all 30 have a confidentiality or non-disparagement policy that could have a chilling effect on employees who want to report fraud, waste, or abuse.

Katz, Marshall & Banks should be commended for alerting the FAA to what could prove to be an industry-wide effort to suppress the reporting of air safety concerns and violations of the law. We hope the FAA joins the SEC in cracking down on abusive corporate confidentiality and non-disclosure practices. Whistleblowers should not expect "friendly skies." But with increased legal protections and agency enforcement, we can at least make their ride as turbulence-free as possible.