Jottings By An Employer's Lawyer

Sunday, February 06, 2005

3rd Circuit Breaks Tie - Narrow Reading of Pre-emption Under Airline Deregulation Act

Can an employee of an air carrier sue under a state whistleblower act, or are they limited to the provisions under the Airline Deregulation Act and its Whistleblower Protection Program? As a general rule, plaintiffs would prefer the state court action, and the 3rd Circuit has joined the 11th in finding that the state action is not pre-empted. Gary v. The Air Group, Inc. (3rd Cir. 2/3/05) [pdf].

The 8th Circuit has taken a different view, but the district court's reliance on that decision is disapproved by the 3rd Circuit as it allowed a pilot's complaint that he was terminated for complaining that another pilot was unsafe, to proceed under the New Jersey Conscientious Employee Act. This may just fall in that category of decisions I have long called, "judges fly too," as it seems courts often take the most favorable view of whatever side is arguing for the safest course of action. And having lived on airplanes for the last week, I can't say that I disagree with them.

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