Bad Behavior in the Back

Kent S. Jackson | February 20, 2020

If You See Something, Say Something(?)

TSA signs at the airport decree If You See Something, Say Something! But once you take your seat in the cockpit, the Non-Disclosure Agreement (“NDA”) that you signed when you were hired decrees that what happens in the cabin, stays in the cabin.

There are many legitimate reasons for NDAs in today’s business aviation world. The cabin of a business jet provides a unique space for negotiations. Flight crews are often privy to highly confidential strategy sessions. Competitors could predict possible corporate mergers simply by knowing your company’s passengers and destinations. And crews today need to be reminded not to participate in social media while on the job. If your Facebook post reveals your company’s confidential itinerary, then you violated the NDA.

Limits of a Non-Disclosure Agreement

What are the limits of the NDA? Many NDAs acknowledge that the NDA does not prevent you from answering questions if subpoenaed. It doesn’t matter whether the NDA acknowledges the power of the courts or not, an NDA does not allow you to sit silent in a deposition or on the witness stand if you are being questioned about criminal behavior in the plane.

Pilots have testified in a variety of salacious situations. There have been shareholder lawsuits and government corruption scandals that featured pilot testimony about prostitution taking place in the cabin. In most instances, the pilots were offered immunity from prosecution or lawsuit in return for their testimony. It is important to understand that employees are not shielded from criminal prosecution simply because they felt that their job was threatened if they did not keep quiet. If pilots aid in a criminal activity by making the transportation possible, then they may become accessories to the crime.

Flight Logs – When and Why

In addition to pilot testimony, the courts are often interested in the pilots’ flight logs, particularly if the logs or other records list passenger names. Does the law require you to keep track of passenger names? If you fly FAR Part 91, neither the FAA nor the TSA care about passenger names. However, if the company wants to protect tax deductions, then the company needs to track who is on the plane and why.

Can you destroy flight logs when lawyers come looking for them? NO. If the lawyers looking for the logs are prosecutors, then destroying or altering records would result in criminal charges against you for tampering with evidence and obstruction of justice. A person commits the crime of tampering with evidence when he or she knowingly alters, conceals, falsifies, or destroys any record, document, or tangible object with the intent to interfere with an investigation, possible investigation, or other proceeding by the federal government. Tampering with evidence also includes destroying or altering documents or things “in contemplation of” an investigation or other proceeding that may occur in the future.

If the lawyers are working on a civil lawsuit, then destroying or altering records would result in civil charges of “spoliation of evidence.” Spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding. The only way to safely destroy company records is when records are routinely discarded in accordance with an adopted record retention policy. Because company flight departments typically retain passenger information for tax purposes, these records are usually retained for a minimum of five years.

There are many “whistle blower” laws designed to protect employees who report illegal activity within a company. However, these laws tend to be very fact specific. For instance, there are federal whistleblower laws designed to protect air carrier employees who report safety violations to the FAA. These laws do not cover FAR Part 91 operations. The Securities and Exchange Commission has adopted a rule barring agreements prohibiting disclosures from an employee to the agency. The rule prohibits actions to enforce, or threaten to enforce, a confidentiality agreement to prevent an individual from discussing a possible securities law violation with the Commission. The only exception is an agreement protecting information covered by attorney-client privilege. This law is quite specific, and not likely to protect a flight crew, because a flight crew would be less likely to know about the information that the SEC wants to investigate.

If you have signed an NDA or other form of confidentiality agreement, and you believe that you need to act in order to avoid becoming a party to criminal activity, then you need to consult with an attorney who is well-versed in both the state and federal laws. This won’t be an aviation attorney, it will be a labor attorney.

This article appeared in the October, 2019 issue of Business & Commercial Aviation as a Point of Law article.