Second Circuit Weighs In On AIR21 Burden-Shifting Framework

Retaliation and whistle-blower claims are on the rise, including those based on the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR21"), which prohibits carriers from discriminating against those who report alleged violations of the FARs or other aviation safety standards. Cases involving interpretation of AIR21, or of other statutes such as the Sarbanes-Oxley Act ("SOX") that incorporate AIR21's elements and burdens of proof, have started to make their way to the Circuit Courts of Appeals, providing us with insight on how such claims will be analyzed. In a recent decision arising under SOX, the Second Circuit expressed its view on these issues for the first time. Bechtel v. ARB, 2013 U.S. App. LEXIS 4539 (2d Cir. March 5, 2013).