CORPORATE FLIGHT DEPARTMENTS AND HOW THE PILOT RECORDS DATABASE ("PRD") WILL DIFFER FROM THE PILOT RECORDS IMPROVEMENT ACT ("PRIA")
Last February we posted an article discussing the Pilot Records Improvement Act (“PRIA”), focusing on (1) how employers (Part 121 and 135 air carriers, 125 and 135 air operators and 91(k) fractional ownership operators) can avoid liability for how they compile, store and transmit PRIA files and (2) what pilots can expect when seeking to correct their PRIA files, or for that matter, if they simply want to know what’s in them.
Prior article available here: https://www.avialex.com/aviation-news/2019/2/22/what-you-need-to-know-about-civil-liability-under-pria
PRIA was designed as a sort of stopgap measure under the Airline Safety and FAA Extension Act of 2010 requirement for the FAA to develop, implement and manage a records clearinghouse. PRIA appears to now be entering its sunset as the FAA has finally released initial proposed rules for the utilization of a new electronic Pilot Record Database (“PRD”).
On March 30, 2020, the FAA issued a Notice of Proposed Rulemaking (“NPRM”) providing the public with a 90-day period to review and comment on the proposed rules surrounding the PRD. https://www.federalregister.gov/documents/2020/03/30/2020-04751/pilot-records-database
First and foremost, for existing carriers and operators who fall under PRIA there will be a large reduction in recordkeeping as PRIA’s current scheme of requiring potential employers to contact past employers to request PRIA files will be superseded by an online reporting requirement whereby employers will be obligated to continually update the online PRD with relevant information. Instead of employers maintaining a PRIA file for each pilot, the FAA will instead be maintaining a PRD.
A second significant change is that the FAA is proposing that PRD expand pilot record keeping requirements beyond 121,125,135, 91(k) to additionally include Corporate Flight Departments with more than two jet aircraft with standard airworthiness certificates operated under Part 91 or 125.3.
The argument for expanding the record requirements to include corporate flight departments is that it is not uncommon for pilots to start their careers, or occasionally work for, corporate flight departments. Accordingly, any relevant corporate flight department records related to an applicant pilot’s training, drug and alcohol testing, accidents/incidents, etc. may be relevant to the carrier’s hiring decision.
Third, PRD will be expanded to include air tour operators, governmental entities conducting public aircraft operations and bankruptcy trustees.
The proposed reporting requirements will obligate employers to upload to the PRD any “reportable events” within 30 days of any such event and ensure that the upload is “ready for immediate review.” We assume this means that the agency will eventually publish specific forms and the PRD portal will mandate file type and format.
Should the proposed regulations in the NPRM be promulgated as written, all applicable pilot record filings and requests must immediately be done electronically (or uploaded within 30 days of “event”) and thereafter employers will be required to upload all “historical” records within two years. PRIA will then officially sunset nine months later.
As for pilots themselves, the NPRM and PRD may create some long term difficulties as they officially permanently prohibit the expungement of enforcement action summaries from a pilot’s PRD until after the pilot’s death. Once PRD goes live, the only way for a pilot to ever have his or her record cleared will be to appeal the action and seek its being overturned by the NTSB, the FAA Administrator or the U.S. Courts, all at substantial expense (and risk).
For non-FAA enforcement action adverse pilot records, the duty will be on the pilot to identify or flag any record errors and the pilot will be required to “contact originator for resolution”. As there is as yet no formalized process to “contact originator for resolution” the pilot community may be faced with navigating thousands of different resolution processes, each applicable to a specific individual corporate flight department, operator or carrier.
One caveat that may provide pilots with some breathing room is that only “final disciplinary actions” are required to be filed which means employers should not file with the PRD corrective actions that are subject to any “pending formal or informal dispute initiated by pilot”.
We envision pilots challenging employer disciplinary actions (whether or not those challenges are meritorious) solely for the purpose of delaying the submission of adverse information to the PRD. Only time will tell.
Another potentially problematic area is in NPRM’s requirement that employers be required to report the type of separation-i.e., fired, laid off or quit. As employment separations can often involve employment disputes (OSHA/whistleblower claims, retaliation/harassment claims, wrongful termination, etc.) expect this to likely be an area of high contention.
Contact one of the attorneys at Avialex Law Group, LLP, if you want to discuss how the PRD NPRM may affect you. You have until June 29, 2020, to provide public comment on these new rules.